
Class _dj5_y>£^ 



Book 



Cop>Tightl^^. 



COEWUGHT DEPOSIT. 



ITHACA GUNS 



ITHACA GUN COMPANY 

ITHACA, N. Y. 



GAMELAWGUIDE 

DISCUSSING 
The New York State Conservation Law 

AS TO 

Forests, Fish and Game 



BY 

NELSON L. DRUMMOND 

Of Auburn, N. Y., Attorney at Law, Ex-member of Assembly, 
Special Game Protector 



Published by 

J. B. LYON COMPANY, PRINTERS 

ALBANY, N. Y. 

PRICE $1.50 POSTPAID 



^J 



4^^i^ 



Entered, according to Act of Congress, in 191 6 

by 

Nelson L. Drummond 

In the Office of the Librarian of Congress 

at Washington 



^ 



X 



SEP 30 1916 



»CI.A487899 



CONTENTS 



PAGE 

Introduction 7 

Chapter I. Organization and general powers of the Com- 
mission 13 

II. Lands and forests 20 

III. Ownership of game 56 

IV. General powers and duties of the Commission as 

to Fish and Game 77 

V. Hunting, trapping and fishing licenses 107 

YI. The backbone of the law, section 176 126 

VII. Song, plume and insectivorous birds 135 

VIII. The taking of game protected by law 139 

IX. Game quadrupeds and fur-bearing animals 145 

X. Game birds 155 

XI. Fish 162 

XII. Netting 179 

XIII. Marine fisheries 188 

XIV. Transportation 191 

XV. Breeding, importation and sale of game. " 197 

XVI. The protective force 206 

XVII. Procedure 214 

XVIII. Private property rights in wild animals 247 

XIX. Private parks and posted lands 315 

Directory' of the Conservation Commission .... 357 
Index 367 

[5] 



INTRODUCTION 



''All are but parts of one stupendous whole; 
Whose body nature is; and God, the soul." 

The romance and the scope of the conservation scheme 
can perhaps happily be gathered from those lines of 
Pope. Earth and her waters and the fullness thereof, 
the State, within the reaches of its jurisdiction, has 
taken under wing and all of that wild wealth known as 
our natural resources has become its ward. 

The Conservation Law is subdivided as follows : 

Article I. Short Title. 

II. Department of Conservation. 

III. General Provisions. 

IV. Lands and Forests. 
V. Fish and Game. 

VI. Hydraulic Development. 
VII. River Improvement. 

Vila. River Regulation by Storage Reservoirs. 
VIII. Drainage. 

IX. Water Supply. 

IXa. Union Water Districts. 

While the more practical minded may attach greater 
importance to such branches as the extension of com- 
mercial forestation, hydraulics, drainage, and water 
supply, to the lovers of the life which is free from crowds 
and carking cares, the activities of those di\'isions in 
chief charge of forests, fish and game, furnish a quicker 
fascination. 

This book is devoted to a discussion of Article IV on 
Lands and Forests, and Article V on Fish and Game, 

[7] 



8 Game Law Guide 

together with such other legislation as bears immediately 
upon the interests, rights and liabilities of the owner of 
the land and those who hunt or fish thereon. And partic- 
ular attention has been paid to the unsettled question of 
property rights in fish and game and to the mixed matter 
of posted lands. 

The law will of course be amended annually, but anno- 
tations on the margin will keep it abreast of changes. 
At the back of the book will be found blank pages for 
memoranda as to the catch or kill of fish and game. 

The protection of the forests against fires and com- 
mercial foes is from every standpoint, indispensable. 

The value of insectivorous birds can be appreciated 
from the fact that the authorities of Pennsylvania have 
estimated that it requires 3,600 tons of insects to feed 
the birds in that State one single day. According to the 
United States Department of Agriculture there is a loss 
of at least 10 per cent of the entire crop each year due to 
insect pests and that loss amounts to $1,000,000,000. In 
some of the southern states they have come to the con- 
clusion that cotton cannot be successfully raised without 
the co-operation of the quail which largely feed upon 
boll-weevil. It has been stated that one quail in one year 
will devour one and one-half tons of bugs and insects. 
Farmers in this State are gradually realizing that the 
pheasant because of his voracity and capacity for potato 
bugs and cabbage worms more than compensates them 
for the grain he eats. 

The food value of the fish and game legitimately taken 
in the State during any .year would amount toward the 
millions. It was estimated from statistics taken that in 
Pennsylvania in 1914 there were legally killed at least 
400,000 ruffed grouse, 2,000,000 rabbits, 37,000 quail, 
225,000 squirrels, 17,000 woodcock, 37,000 water fowl, 
9,500 raccoons, 400 bears, and 1,100 deer, aside from 
other game, furbearing animals and fish. 



Intboduction 9 

As compared with the sums expended by sportsmen in 
the effort to kill fish and game the appropriations made 
for their propagation and protection are pitifully inade- 
quate. The Pennsylvania authorities conservatively 
estimated that in 1914 at least the sum of $4,000,000 in 
actual cash was expended in that State in the effort to 
destroy fish and game. 

Similar conditions exist in this State and the co-opera- 
tion of all interested in the permanence of sport must be 
forthcoming. 

No class of men is more immediately concerned with 
the growth of conservation than the proprietors of the 
land who in the main are the farmers of the State. With 
the exception of the public properties in the forest pre- 
serve and elsewhere, they are in virtual control of the 
natural open. Upon their premises must be kept intact 
and widened out the timber growths which furnish cover 
for the game and husband the waters upon which the fish 
supply depends. Over their holdings course the streams 
and in many cases lie the waters which must be kept 
stocked to afford the angler his sport. 

In recognition of this bond between it and the farmer, 
the State, along -with other things, offers him its aid by 
furnishing at cost all kinds of trees for forestation pur- 
poses. Under the profitable supervision of the Com- 
mission, the areas which are of doubtful value for uses 
of cultivation may be gradually retimbered and by con- 
forming to the beneficial provisions of the law, the o^vner 
of forested and reforested lands can both lumber them 
and have them to a large extent, exempted from taxation. 
The land owner who actually occupies and cultivates his 
land or the lessees doing likewise and the members of 
their immediate families, are not required to procure 
licenses in order to enjoy the hunting on it although the 
State, if it saw fit, might refuse them this exemption 
altogether. The exclusive fishing and hunting rights 
which are an incident to the o"wnership of the land the 



10 Game Law Guide 

law protects with might and main. By properly posting 
his lands the owner may hold liable civilly in exemplary 
damages and criminally for misdemeanor, any one who 
trespasses against those rights without his waiver or 
consent. The law requires the hunter to exhibit to the 
owner for inspection on demand, his hunting license, 
thus enabling trespassers and perpetrators of malicious 
mischiefs to be identified, arrested and brought to book. 

In return for these concessions, it is not asking too 
much of the beneficiaries to assist in every reasonable 
way the enforcement of the law no matter whom it hits 
or hurts. The other interests of the farmer demand it, 
for lawlessness of any kind begets a disregard of rights. 

In the interests of sport, the sportsmen should support 
the Commission in every legitimate way and particularly 
should they observe the rights and even the preferences 
of the owners of the land. If every farmer in the State 
should avail himself of the provisions of Part XI of 
Article V and because of the lawless acts which are so 
frequently committed, should enforce the law which pro- 
tects his rights, against all comers, there would be little 
hunting or fishing outside of public lands and waters for 
those who were not in position and disposed to trade the 
favors with him. For any such condition of affairs the 
sportsmen alone will be responsible. 

No man can be said to be more generous or responsive 
to right treatment or the application of the golden rule 
than the average farm owner. The right to fish and to 
hunt upon his property is a valuable privilege and those 
who deem it otherwise would do Avell to abandon tlie 
sport. To have what would otherwise be a trespass, 
waived in one 's favor is worth at least a genuine appre- 
ciation and some sportsmen are wholesouled enough to 
share with the farmer who is too busy or otherwise 
unable to get afield or astream the spoils which except 
for his concession they would go without. 

It is unreasonable to expect a sportsman to be familiar 
with the whole law on fish and game. The big game 



Introduction 11 

hunter is likely to be less interested in small game; the 
bird hunter is usually indifferent to quadrupeds ; and the 
game fish angler is not as a rule concerned enough about 
net fishing to ascertain to what extent it lawfully may 
be carried on. But every person can reasonably acquaint 
himself with all the law as to his particular *' hobby " 
and should have it in the volume of his head. 

The authorities of Oklahoma concede that in that State 
the best observers of the law are the dispossessed heirs 
of all our natural resources, the Indians. 

The line of demarcation between alleged sport and 
avowed piracy is shadowy and obscured. But it may be 
safely stated that the true sportsman is he who relent- 
lessly enforces the law and the rights of the man by 
whose grace he is afield or astream against not only self 
but others. More than that, his maxim should be: 

" The law may allow much that honor prohibits ; 
But prohibits nothing which honor allows." 

Upon the basis of such a test, all of us are pirates with 
perhaps the advantage or disadvantage of degree. But 
all can make an effort to meet that measure and: 

It is to those prodigal lovers of the natural and 
spiritual open, who in its exploitation, earn health of 
brain and brawn, add years to youth, come close to 
nature's heart and consequently near to God; who in a 
' ' life exempt from public haunt, ' ' unmarred by mammon, 
where ^'Adam's penalty — the season's diiTerence " 
gives only brace and thrill, hear voices in the silence; 
and whether on the hills or in the woods or by the musi- 
cal meanders and mother o' pearl waters of capricious 
streams, observe a soul in every scene and catch a melody 
in every noise that's known; and who, above all else, on 
every tramp, deem full respect of other's rights the fore- 
most due and call a modest spoil of feathers, fur or fins 
within the laAv and honor fairly won, the crown, but not 
the sum of all the charms of sport, that this modest 
volume offers its appeal. 



CHAPTER 



ORGANIZATION AND GENERAL POWERS OF THE 

COMMISSION 

One of the interesting parts of the law is that deal- 
ing with the organization of the Commission and the 
Department. 

The Conservation Commission with its principal office 
at Albany, N. Y., consists of a single commissioner in 
chief executive and administrative charge of the depart- 
ment. The term Commission when used in Article VII 
on River Improvement means a body or board comprised 
of the conservation commissioner, the attorney-general, 
and the state engineer or their respectively designated 
deputies. 

See section 380-1. 

The commissioner is appointed by the governor upon 
confirmation by the Senate for a term of six years and is 
removable by him upon sustained charges of inefficiency, 
neglect or misconduct in office after notice and a hearing. 
The office is not yet a constitutional one. 

The Commission appoints to hold office during its 
pleasure, a secretary, a deputy commissioner, a superin- 
tendent of forests, and assistant superintendent of 
forests, a division engineer and two assistant engineers. 

The attorney-general appoints and assigns to the Com- 
mission a deputy attorney-general and such assistants as 
may be necessary. 

The Conservation Department is comprised of three 
divisions : 

The Division of Lands and Forests with jurisdiction 
over tree culture, reforestation, parks, reservations and 
lands is in chief charge of the Superintendent of Forests. 

The Division of Waters in control of water storage, 

[131 



14 Game Law Guide 

hydraulic development, water supply, river improvement, 
drainage, irrigation and the navigation of waters outside 
of the canals is in chief charge of the Division Engineer. 

The Division of Fish and Game in charge of fish and 
game including shell fish and the protection and propaga- 
tion thereof is in chief charge of the Chief Game 
Protector. 

In view of the fact that no man can well serve both 
conservation and mammon, the law makes ineligible to 
the positions of commissioner, deputy commissioner, 
secretary or chief of a department division, any person 
engaged in the business of lumbering in any forest pre- 
serve county or the distribution or sale of water or any 
business in the conduct of which hydraulic power is used. 

The present personnel of the Commission, Department 
and appointees in the exempt, competitive and non-com- 
petitive classes of the civil service is too extensive to be 
included in a work of this character. The rosters of the 
fish and game protective force and of the forest fire pro- 
tective force are contained in the compilations of the law 
published annually by the Commission. 

The commissioner, secretary, detputy commissioner, 
superintendent of forests, assistant superintendent of 
forests, chief game protector, deputy chief game pro- 
tector and division engineer, in addition to salaries, 
receive necessary actual expenses and disbursements. 

Annual reports are made by the Commission to the 
Legislature covering the different branches of its work, 
a brief description of lands purchased, statistics as to 
fires, trespasses on State lands and a brief summary 
of litigation, and reports setting forth the work of the 
department are published and distributed and can be 
secured on application. 

The inquiries, investigations and hearings authorized 
by law, to be held by the Commission may be held by or 
before the commissioner, the deputy commissioner or any 
chief of a division and may also be held by or before 
any officer or employee of the department designated by 



Okganization and General Powers of Commission 15 

written order filed in the office of the Commission. Every 
order or decision made by one other than the commis- 
sioner in order to become that of the Commission must 
be confirmed and ordered filed by him. Oaths may be 
administered by any one of the foregoing incumbents 
holding hearings or investigations. 

Aside from such investigations as are pertinent under 
Article VI on Hydraulic Development, Article VII on 
River Improvement, Article Vila on River Regulations 
by Storage Reservoirs, Article A^III on Drainage and 
Article IX on Water Supply, hearings are provided for 
by section 152 on additional protection and by section 153 
on fish and game closes. Many other matters are the 
proper subjects of hearings such as fishways under sec- 
tion 291 and care of forests under section 50. 

By Section 20, it is provided that: 

The conservation commission sball have the power, for the state, 
to initiate and conduct of its own motion any proceeding pro- 
vided for in any article of this chapter, for the construction of 
improvements, or development of natural resources, for the public 
health or safety or welfare or any of them and if a petition is pre- 
sented by any person or persons or by a corporation municipal or 
otherwise under any such article, the commission may in its discre- 
tion extend the scope of such proceeding to and including any or all 
improvements or developments of natural resources which may be 
done under all or any provisions or provision of this chapter and 
if any part of the procedure governing the matters concemuig 
which the petition is presented cannot be made applicable in all 
respects to the subject matter of the proceeding as thus extended, 
then the procedure peculiar to such additional matters as provided 
for in this chapter shall be adopted to the extent necessary. 

It seems that an appeal to the Supreme Court lies from 
any order or decision of the Commission taking the form 
of an application to have vacated or modified the order 
of the Commission. 

Matter of Deposit, 131 A. D. 403. 



16 GrAME Law Guide 

These practically limitless powers would not appear, 
however, to permit the Commission to institute inquiries, 
proceedings or investigations as to reported violations 
of the law as to fish and game, in the nature of "John 
Doe " proceedings. Such authority is expressly con- 
ferred upon the Oregon Commissioners by section 54 of 
the Oregon statute in order to get cross lots to the facts 
and avoid frivolous indictments or prosecutions. 

The broad powers of the commission in the matter of 
subpoenas and requiring the attendance of witnesses in 
such proceedings are set forth in Section 24: 

The commission shall have the power to subpoena and require 
the attendance in this state of witnesses and the production by them 
of books and papers pertinent to the investigations and inquiries 
which it is authorized to make under any article of this chapter, 
and to examine them and such public records as it shall require in 
relation thereto, and for the purposes of such examinations the 
conservation commission shall possess all the powers conferred by 
the legislative law upon a committee of the legislature or by the 
code of civil procedure upon a board or committee, and may invoke 
the power of any court of record in the state to compel the attend- 
ance and testifying of witnesses and the production by them of 
books and papers as aforesaid. 

See section 854 of the Code of Civil Procedure and article 4 
of the Legislative Law. 

Section 25 provides as follows as to the immunit}^ of 
witnesses sworn in these proceedings: 

No person shall be excused from testifying or from producing 
any books or papers in any investigation or inquiry by or upon 
any hearing before the commission or any commissioner, when 
ordered to do so by the commission, upon the ground that the 
testimony or evidence, books or documents required of him may 
tend to incriminate him or subject him to penalty or forfeiture, 
but no person shall be prosecuted, punished or subjected to any 
penalty or forfeiture for or on account of any act, transaction, 
matter or thing concerning which he shall under oath have testified 
or produced documentary evidence; provided, however, that no 
person so testifying shall be exempt from prosecution or punish- 
ment for any perjury committed by him in his testimony. Nothing 



Oeganization and General Powers of Commission 17 

herein contained is intended to give, or shall be construed as in any 
manner giving unto any corporation, immunity of any kind. 

See authorities cited under section 35, chapter XVII on 
Procedure. 

The duty of the Commission as to investigations of the 
water resources of the State is set forth in Section 21 : 

It shall be the duty of the commission to continue investigations 
of the water resources of the state, including the systematic gaging 
of rainfall and stream flow throughout the state, so as to complete 
a comprehensive system for the entire state, for the conservation, 
development, regulation and use of the waters in each of the prin- 
cipal watersheds of the state with reference to the accomplishments 
of the following public uses and purposes: 

1. The prevention of floods and the protection of the public 
health and safety in the watershed. 

2. The supply of pure and wholesome water from the watershed 
to municipalities and the inhabitants thereof and the disposal of 
sewage. 

3. Drainage and irrigation. 

4. The development, conservation and utilization of water power 
in the watershed and to create a revenue for the state. 

5. The protection of the public right of navigation. 

It shall be the duty of the commission to investigate the possi- 
bilities of improving and extending navigation .in rivers, lakes and 
other water courses and bodies of water outside the canal system in 
each such watershed, including an investigation into the character 
of such waters and the use thereof for navigation and with the 
view of collecting data to determine the upstream limits of the 
public right of navigation, and to report from time to time the 
result of such investigations to the end that a complete plan will 
be presented for the economical and comprehensive development of 
all water resources, for all of the aforesaid purposes, in each of 
the principal watersheds of the state ; and each of said purposes is 
hereby declared to be a public use or is continued as a public use. 
It shall investigate and report as to the privileges heretofore 
granted affecting the use of the waters aforesaid and as to the 
terms of such privileges and whether the conditions thereof have 
been complied with or the terms expired or whether revocable and 
investigate and report as to the diversion rights in streams hereto- 
fore acquired by the state and as to the use being made of the 
waters affected thereby. 

2 



18 Game Law Guide 

Each such plan for any watershed shall set forth the develop- 
ments already made and authorized to be made in such watershed 
for one or more such purposes, whether by the state or otherwise, 
and the extent to which any such existing or authorized develop- 
ment may be improved, enlarged or extended so as to increase or 
extend its efficiency for any of the aforesaid purposes, to the end 
that all developments in each watershed for all such purposes may 
be co-ordinated and unified, the rights of the state asserted and 
utilized so as to combine the most economical construction, mainte- 
nance and operation, and the most efficient service, with the pro- 
duction of the largest net revenue and public benefit to the state 
which may be practicable. 

While the waters of the State are subject to federal 
regulations as to commerce, it was held by the Attorney- 
General in 1912, Vol. II, Page 601, that at that point the 
authority of the federal government stopped and that 
otherwise, matters of conservation and water riights 
were within the sole power and province of the State. 

It is important to note that nothing is mentioned in 
Section 21 as to any public right of fishing or fowling in 
or on socalled navigable waters. 
See chapter XVIII. 

Toward the public purposes referred to in Section 21, 
it is provided in Section 22 : 

No structure for impounding water, not a part of the canal 
system of the state and no dock, pier, wharf or other structure 
used as a landing place on waters not a part of the canal system of 
the state, shall be erected or reeonstiiieted by any public authority 
or by any private person or corporation without notice to the 
commission nor shall any such structure be erected, reconstructed 
or maintained without complying with such conditions as the com- 
mission may by order prescribe for safeguarding life or property 
against danger therefrom. No order made by the commission shall 
be deemed to authorize any invasion of any property rights, public 
or private, by any person in carrying out the requirements of such 
order. The commission shall have power, whenever in its judg- 
ment public safety shall so require, and after a hearing either 
on its own motion or upon complaint, to make and serve an order 
directing any person, corporation, officer or board, constructing, 
maintaining or using any structure hereinbefore referred to, to 
remove, repair or reconstruct the same within such reasonable time 



Organization and General Powers of Commission 19 

and in such manner as shall be specified in such order, and it shall 
be the duty of every such person, corporation, officer or board to 
obey, observe and comply with such order and with the conditions 
prescribed by the commission for safeguarding life or property 
against danger, therefrom, and every person, corporation, officer or 
board failing, omitting or neglecting so to do or who hereafter 
erects or reconstructs any such structures herein before referred to, 
without submitting to said commission and obtaining its approval 
of plans and specifications for such structures when required so 
to do by order of the commission or who hereafter fails to remove, 
erect or reconstruct the same in accordance with the plans and. 
specifications so approved shall forfeit to the people of the state a 
sum not to exceed five hundred dollars to be fixed by the court for 
each and every offense ; every violation of any such order shall be 
a separate and distinct offense, and, in case of a continuing vio- 
lation, every day's continuance thereof shall be and be deemed to 
be a separate and distinct offense. This section shall not apply to 
a dam where the area draining into the pond formed thereby does 
not exceed one square mile, unless the dam is more than ten feet 
in height above the natural bed of the stream at any point or 
unless the quantity of water which the dam impounds exceeds one 
million gallons; nor to a dock, pier, wharf or other structure under 
the jurisdiction of the department of docks in a city of the first class. 

Section 22 applies both to the marine district and the 
inland waters of the State and has an important bearing 
on such structures as unwarrantably interfere with fish- 
ing along the shore of public waters and the dams on 
streams and other bodies of water erected in the aid of 
fishing and fowling. 

See also sections 290 and 291 on dams, etc., on the inland 
waters of the State treated in chapter XIX. 

Actions to recover penalties under Section 22 may be 
brought to recover all incurred up to the time of the 
commencement thereof and the right to recover any other 
penalty shall not be waived thereby. 

Moneys recovered in such actions shall be paid into 
the State Treasury to the credit of the general fund. 

The penalty provided in Section 22 is one of the few 
exceptions referred to in Section 182 covering generally 
the matter of penalties. 



CHAPTER II 



LANDS AND FORESTS 

The wide powers of the Commission with reference to 
lands and forests are mainly directed toward the develop- 
ment of timber lands as the basic sources of the water 
supply with all which that involves. 

Article IV might properly be divided into two parts; 
the first dealing with the maintenance and perpetuation 
under the constitution, of the forest preserve; and the 
second treating of the improvement and reforestation of 
other lands for the purposes both of conservation and of 
commerce. 

To keep the forest preserve lands wild and as far as 
possible in their aboriginal condition, with all their 
natural standing growths and all the fallen tangles and 
accumulations, in protection of the water supply and as 
a natural cover for the game there found and propagat- 
ing is the primarv object. To attain this end, it will 
doubtless be necessary for the State to purchase all the 
privately owned lands within the so-called blue lines 
marking the boundaries of the Adirondack and Catskill 
parks and protect them absolutely against the axe and 
fires. 

See section 50, subdivision 6. 

A secondary, but important object is the development 
on the other lands of the State suitable therefor of a 
supply of timber primarily for commercial purposes and 
incidentally in aid of water sources, fish supply and game 
cover. This scheme requires the whole-souled sympathy 
and co-operation of the land owners of the State in order 

[20] 



Lands and Forests 21 

that the timber now growing may be kept intact and 
developed and other lands adaptable, reforested. 

Both of these arms of the project immediately concern 
the sportsman for game must have natural cover and fish 
must have unpolluted water, and the well governed 
exploitation of timber resources is a conservation both 
of fish and game. 

Article VII, Section 7 of the State Constitution pro- 
vides as to the forest preserve as follows : 

The lands of the state now owned or hereafter acquired, constituting 
the forest preserve as now fixed by law, shall be forever kept as wild 
forest lands. They shall not be leased, sold or exchanged, or be taken 
by any corporation, public or private, nor shall the timber thereon be 
sold, removed or destroyed. 

The keeping of the preserve as wild lands has been 
interpreted as preventing not only the removal of grow- 
ing, but also of dead, fallen and burnt timber; the 
exploitation of mineral and stone deposits; and the 
appropriation of water power together with any sales of 
any materials, including buildings. 

See Report of Attorney-General, 1903, page 364. 
See Report of Attorney-General, 1910, page 770. 
See section 61, subdivision 8. 

The socalled Long Sault Development Company grant 
under Chapter 355 of the Laws of 1907 for the purpose of 
developing water power on the St. Lawrence river was 
held to be violative of the forest - preserve in that it 
included the bed of the river within its confines. 

See Report of Attorney-General, 1912, vol. II, page 576. 

The general constitutional principle has been appUed 
in many cases of which the following are a choice: 

Adirondack R. R. Co. v. Indian River Co., 27 A. D. 326. 
People V. Adirondack Railroad Co., 160 N. Y. 225. 
People V. Brooklyn Cooperage Co., 187 N. Y. 142. 
Matter of Long Sault Development Co., 212 N. Y. 1. 
People V. Santa Clara Lumber Co., 213 N. Y. 61. 



22 Game Law Guide 

The general domain embraced in the forest preserve is 
described in Section 62, Subdivision 1: 

The forest preserve shall include the lands owned or hereafter 
acquired by the state within the count}'- of Clinton, except the towns 
of Altona and Dannemora, and the counties of Delaware, Essex, 
Franklin, Fulton, Hamilton, Herkimer, Lewis, Oneida, Saratoga, 
Saint Lawrence, Warren, Washington, Greene, Ulster and Sullivan 
except 

(a) Lands within the limits of any village or city and 

(b) Lands not wild lands acquired by the state on foreclosure of 
mortgages made to loan commissioners. 

Lands acquired by the State on tax sales if lying 
within the lines are to be deemed a part of the forest 
preserve. 

See Report of Attorney-General, 1911, vol. II, page 254. 

'' Village " as used in this section means an incor- 
porated village. 

See General Construction Law, section 54. 

The important tracts within the blue lines are the 
Adirondack Park and the Catskill Park ; other tracts of 
note are the Saint Lawrence Reservation and the John 
Brown Farm. These parcels are definitely described by 
metes and bounds in Section 62, Subdivisions 2, 3, 4, 
and 5. 

All lands within the parks now owned or wliich may 
hereafter be acquired by the State are to be forever 
reserved and maintained for the use of the people. 
Lands within or adjacent to the parks, privately owned, 
are subject to certain provisions of the law and may be 
acquired by the commission pursuant to Section 50, Sub- 
division 6. 

See Section 54, Subdivision 1, which provides for the 
closing of the territory within the fire towns against 
fishing and hunting in times of drought, and Section 193 
on the use of dogs in the parks, or forests inhabited by 



Lands and Forests 23 

deer. Adirondack maps may be secured upon application 
to the Commission. 

The forest preserve is to be distinguished from proper- 
ties covered by the Public Lands Law, particularly 
Article II on Crown Lands, Article III on Unappro- 
priated State Lands, Article IV on Abandoned Canal 
Lands, Article V on Escheated Lands and the matter of 
Grants of Land under Water, covered by Article VI. It 
has no reference to barge canal lands. 

This discussion is also apart from Articles III- VI of 
the Navigation Law covering the Hudson River and other 
waters of the State and the use of rivers and streams as 
public highivays. 

The Commission has no jurisdiction over the Palisades 
Interstate Park comprising lands on the west side of the 
Hudson River in the States of New York and New Jer- 
sey appropriated for and devoted to scenic and other 
purposes under Chapter 97 of the Laws of 1895 and acts 
amendatory thereof except to co-operate with the com- 
missioners in charge of the same in the matter of the 
protection of forests, fish and game therein. 

The Cuba reservation as defined by Section 62, Sub- 
division 6, includes all lands owned by the State sur- 
rounding Cuba lake in the counties of Allegany and 
Cattaraugus. 

The other important definitions in the light of which 
most of the provisions of Article IV must be construed 
are contained in Section 62, Subdivisions 7, 8, 9, 10, 11, 
12 and 13 : 

Person includes a copartnership, joint-stock company or corpora- 
tion. 

Forest land includes not only lands which may be covered with 
tree growth, but also lands which are best adapted to forests. 

Forest lire is a fire which is not only burning forest or wood- 
lands, but which, if permitted to extend, would bum forest or upon 
forest lands. 

Fire towns are as follows : All towns in Hamilton county ; the 
towns of Altona, Ausable, Black Brook, Dannemora, Ellenburg and 



24 Game Law Guide 

Saranac, Clinton county; the towns of Andes, Colchester, Hancock 
and Middletown, Delaware county; the towns of Chesterfield, 
Elizabethtown, Jay, Keene, Lewis, Minerva, Moriah, Newcomb, 
North Elba, North Hudson, Saint Armand, Schroon and Wilming- 
ton, Essex county; the towns of Altamont, Belmont, Brighton, 
Duane, Franklin, Harriettstown, Santa Clara and Waverly, Frank- 
lin county; the towns of Bleecker, Caroga, Mayfield and Stratford, 
Fulton county; the towns of Hunter, Jewett, Lexington and Wind- 
ham, Greene county; the towns of Ohio, Russia, Salisbury, Webb 
and Wilmurt, Herkimer county; the towns of Croghan, Diana, 
Greig, Lyonsdale and Watson, Lewis county; the towns of Forest- 
port and Remsen, Oneida county; the towns of Corinth, Day, Edin- 
burg and Hadley, Saratoga county; the towns of Clare, Clifton, 
Colton, Fine, Hopkinton, Parishville, Piereefield, Pitcaim, Saint 
Lawrence county; the towns of Neversink, Rockland, Sullivan 
county; the towns of Denning, Gardiner, Hardenburgh, Olive, 
Rochester, Shandaken, Shawangunk, Warwarsing and Woodstock, 
Ulster county; the towns of Bolton, Caldwell, Chester, Hague, 
Horieon, Johnsburgh, Luzerne, Queensbury, Stony Creek, Thur- 
man and Warrensburgh, Warren county; the towns of Dresden, 
Fort Ann and Putnam, Washington county. 

Bight of way is land adjacent to the tracks of a railroad and 
shall be construed to be fifty feet in width on each side of the 
center of the track but if the company own a lesser width it shall 
include the entire width owned by them. 

A fire patrolman shall be an able-bodied man whose duty is to 
patrol a given portion of right of way for the purpose of detecting 
promptly any fires which may be caused by the operation of the 
railroad, or other fires which may occur upon such portion of the 
right of way, and secure their extinguishment. 

Railroad or railroad company includes all common carriers, 
logging or lumbering roads for public or private uses wherever the 
motive power is generated by steam. 

An eimmeration of the powers of the Commission as 
to lands and forests is contained in Section 50, Sub- 
divisions 1-30: 

The commission shall, for the purpose of carrying out the pro- 
visions of this article, have the following power, duty and 
authority : 

Have the care, custody and control of the several preserves, 
parks and other state lands described in this article. 



Lands and Forests 25 

Make necessary rules and regulations to secure proper enforce- 
ment of the provisions hereof. 

Establish, operate and maintain nurseries for the production of 
trees to be used in reforestation. Such trees may be used to re- 
forest any land owned by the state; supplied to owners of private 
land at a price not exceeding cost of production; or used for plant- 
ing on public lands under such terms as may be deemed to be for 
the public benefit. 

It lias been held that the State has no authority to 
furnish trees to owners of private lands free of charge. 

Attorney-General's Report, 1910, page 761. 

The Pennsylvania commission is by statute authorized 
to distribute trees to applicants free of charge except the 
expense of boxing and shipping. 

Prepare, print, post or distribute printed matter relating to 
forestry. 

Make investigations or experiments with regard to forestry 
questions. 

Purchase, subject to the approval of the governor, lands, forests, 
rights in timber or any interest therein, situated within the Adiron- 
dack or the Catskill parks or lands contiguous, connected with or 
adjacent to either park. 

The exercise of this power will make possible the 
retrieval from private ownership of many tracts essen- 
tial to the scheme of developing the forest preser^^e. 

Receive and accept in the name of the people of the state, by 
gift or devise, the fee or other estate therein of lands or timber or 
both, for forestry purposes. 

Examine the forest lands under the charge of the several state 
institutions, boards or other management for the purpose of advis- 
ing and co-operating in securing proper forest management of 
such lands. 

Employ, with the approval of the superintendent of prisons, 
convicts committed to any penal institution or, with the approval 
of the governing board thereof, the inmates of other institutions, 
for the purpose of producing or planting trees. Such portion of 
the proceeds of the sale of trees grown at state institutions, as the 
commission determines is equitable, may be paid over to that 
institution. 



26 Game Law Guide 

It has been held that convict labor may be employed 
in the propagation of trees for reforestation purposes. 

Attorney-General's Report, 1911, vol. II, page 649. 

Propagate trees and shrubs for the several state institutions or 
for planting along improved highways. Any common carrier may 
transport trees or shrubs grown by the state at a rate less than the 
established tariff. 

Bring any action or proceeding for the following purposes: 

(a) Any action or proceeding, for the purpose of enforcing the 
state's rights or interests in real property, which an owner of land 
would be entitled to bring in like cases. 

(b) Such actions or proceedings as may be necessary to insure 
the enforcement of the provisions of this article. 

(c) To determine in trespass, ejectment or other suitable actions 
the title to any land claimed adversely to the state. 

(d) Bring proceedings before the comptroller or bring actions 
to cancel tax sales or to set aside cancellations of tax sales. 

This authority is particularly available for the removal 
of squatters on State lands and the clearance of State 
title from all clouds. 

The advisability of not ivaiving default in tax sales 
that the State might acquire title for non-payment of 
taxes was urged by the Attorney-General in 1911, Vol. 
II, Page 95. 

May compromise or adjust any judgment or claims arising out 
of violations of any provisions of this article, except where title lo 
land is involved. 

In the case of People v. Santa Clara Lumber Co., 213 
N. Y. 61, it was held that the former forest, fish and game 
commissioner had no right to stipulate in compromise of 
an action involving title to lands that upon conveyance 
or release to the State of such disputed title and of title 
to other lands owned by them, the claimants could dis- 
pose of and remove timber from the lands so conveyed. 

This decision was based squarely upon the constitu- 
tional principle already referred to and the section as it 



Lands and Forests 27 

now reads definitely and expressly excludes from the 
field of compromises any litigation involving the title to 
land. 

Moreover by Section 9 it is provided that no action, 
suit or proceeding in which the title to lands of the State 
in the forest preserve counties shall be involved shall be, 
withdrawn or discontinued, nor shall judgment therein 
against the State be entered on consent except on special 
permission of the court on which application all the terms 
and conditions of the settlement shall be fully stated in 
writing and the reasons therefor set forth at length. 

See chapter XVII on Procedure. 

Have the custody of all abstracts of title, papers, contracts or 
memoranda relating thereto, except original deeds to the state, for 
any lands purchased for forest preserve purposes. 

Examine private forest lands for the purpose of advising the 
owners as to the proper methods of forest management. 

Survey, map and determine boundaries of lands owned by the 
state. 

Maintain a system of forest fire protection in the fire towns and 
such other areas as the commission determines necessary. 

Purchase necessary equipment, tools or supplies, employ men or 
incur other expenses as may be necessary to furnish adequate 
forest fire protection. 

Establish, maintain, equip and operate forest fire observation 
stations, telephone lines or other structures therefor as the public 
interest requires. 

Make contracts, agreements or purchases either for construction, 
operation or maintenance of telephone lines for fire protection 
purposes. Any telephone company may grant the state a preferred 
rate. 

With consent of the owner build or improve fire roads, ditches, 
trails or fire lines. No action for trespass shall lie on account of 
injury to private property on such account, if the act is performed 
in the protection of the forests from fire. 

Appoint necessary employees to perform such duties as are 
required by this article. 

May order removed from service, on forty-eight hours' notice, 
any railroad locomotive, operating in the fire towns, not properly 
equipped with fire protective devices. 



28 Game Law Guide 

May grant an extension of time in which owners may comply 
with subdivision two of section fifty-four, when the commission, 
is satisfied that such an extension of time will not endanger the 
forests to fire, but in no case shall an extension be granted for a 
period of more than six weeks from the time of cutting. 

May relieve railroads from maintaining railroad fire patrol, or 
clearing rights of way when in the judgment of the commission 
the absence of such patrol or clearing will not subject the forests 
to fire menace. 

May request the public service commission to hear and deter- 
mine whether any railroad, person or company operating railroad 
locomotives through forest land is using such devices and pre- 
cautions against the setting of forest fires, as the public interest 
requires. 

May designate persons who shall have authority to issue permits 
as required by subdivision five, section fifty-four. 

May enter into working agreements with land owners for the 
purpose of securing better forest fire protection in the fire towns. 

May make rules, regulations and issue permits for the temporary 
use of the forest preserve. 

See Rules at the close of this chapter. 

Shall have such other powers and duties as are provided by law. 
Reimburse employees for actual and necessary expenses incurred 
while upon official business. 

The officers and employees authorized to administer 
the provisions of Article IV are enumerated and their 
duties, etc., defined in Section 51 : 

1. A superintendent of forests, who shall receive an annual 
salary of four thousand dollars per annum and who shall, subject 
to the direction of the commission, administer all of the provisions 
of this article. 

2. An assistant superintendent of forests, who shall receive a 
salary of two thousand five hundred dollars per annum; and who 
shall assist the superintendent of forests in the performance of 
his duties, and, in the absence or inability of the latter, shall have 
power to act in his place. 

3. A chief land surveyor, who shall receive a salary of two 
thousand four hundred dollars per annum; and who shall, under 
the direction of the superintendent of forests, have charge of 
of locating and determining the boundaries of state land. 



Lands and Forests 29 

4. Five foresters, who shall perform such duties in reforesting, 
fire protection, surveys, investigations, preparation of publications 
and other branches of forestry as may be required. 

5. Such assista7tt foresters as may be required, who shall assist 
the foresters in their duties, and perform such other duties as 
may be assigned them. 

6. A forest patliologist, who shall examine forest trees with 
respect to disease, and carry on such studies as may be deemed 
advisable in connection with diseases attacking or liable to attack 
forest trees in this state. The forest pathologist shall have pursued 
a thorough course in forest pathology. 

7. Two chief railroad inspectors, who shall inspect railroad loco- 
motives and other engines, railroad rights-of-way, and perform 
such other duties as may be assigned them. They must be familiar 
with the construction of locomotives and experienced in their 
operation. 

8. A land clerk at two thousand dollars per annum, who shall 
be employed in filing and preparing records of state's title to 
lands and perform such other duties as may be assigned him. 

9. An auditor of fire accounts, who shall receive a salary of one 
thousand eight hundred dollars per annum. He shall audit lire 
bills and accounts of the forestry bureau, and perform such other 
duties as may be required. He shall execute and file with the comp- 
troller a bond to the people of the state in the sum of five thousand 
dollars for the faithful performance of his duties and that he will 
account for and pay over pursuant to law all moneys received 
by him. 

10. Five district forest rangers, who shall receive a salary of 
fifteen hundred dollars per annum, and each of whom shall have 
charge of a certain portion of the fire towns, to be known as a 
fire district, for the purpose of securing forest fire protection and 
preventing trespass upon state land. 

11. Such forest rangers as may be necessary, to be employed in 
the fii-e towns at monthly salaries of not exceeding seventy-five dol- 
lars; the salai'y of such emploj'ees shall be fixed and determined 
by the conservation commission. 

12. Such observers as may be required to operate the forest fire 
observ'ation stations, to be employed at a monthly compensation of 
not exceeding seventy-five dollars including allowance for expenses. 
The conservation commission shall fix and determine the compen- 
sation of these employees. 

13. Necessary fire wardens, who shall, when fires are actually 
burning, have power and authority to take steps to extinguish 



30 Game Law Guide 

fires. They shall be paid at the rate of twenty-five cents per hour 
for time actually employed. 

14. District forest rangers, forest rangers, observers, fire wardens 
and game protectors or any other officer charged with the duty of 
fire fighting may, when necessary, employ men who shall be paid 
at the rate of fifteen cents per hour and teams to fight forest fires, 
and also engage other men to be known as foremen for particular 
fires to direct the work of men engaged in figliting such fires. 
Such foremen shall be paid at the rate of twenty-five cents per hour 
for time actually employed. These employees may incur other 
necessary expenses in connection with extinguishing forest fires. 
They shall have the power to summon any male person of the age 
of eighteen years and upwards to assist in fighting such fires, and 
any person so summoned shall forthwith proceed to help extinguish 
the fire as directed by tlie person summoning him. 

15. The employees enumerated in subdivisions one, two, four 
and five of this section shall be trained foresters. The positions 
enumerated in subdivisions one and two shall in case of vacancy be 
filled by promotion examination. The emploj'ees enumerated in 
subdivisions one, two, three, four, five, six, seven and eight of 
this section shall be under the competitive civil service classification. 
Those persons employed under subdivisions eleven, twelve and 
thirteen of this section, who are temporary, occasional or emergency 
employees, shall not be under competitive civil service classification. 

16. The employees enumerated in subdivisions one, two, three, 
four, seven, ten, eleven and twelve of this section shall have the 
power to arrest without warrant any person committing a mis- 
demeanor under the provisions of this article, and may take such 
persons immediately before a magistrate having jurisdiction for 
trial, and exercise such other powers of peace officers as may be 
necessary for the enforcement of the provisions of this article. 
No employees shall compromise or settle any violation of this 
article without the order of the commission. 

Compare section 169 on compromises by game protectors. 

In the case of People v. Klock, 55 M. 46 (1907), decided 
on the basis of Article VII, Section 7, of the State Con- 
stitution and Section 222 of the Forest, Fish and Game 
Law, it was held that a person who paid money to a State 
game protector for logs cut on State lands embraced 
within the forest preserve was chargeable with knowl- 



Lands and Fokests 31 

edge of the want of authority in the protector to receive 
it and the latter 's assertion of his right to do so was not 
a fraudulent representation of a fact for which he could 
be indicted for grand larceny. 

See People v. Gaylord, 139 A. D. 814. 

This settlement was made out of court and without the 
sanction of the Commission and the money paid, amount- 
ing to $3,750, never reached the proper authorities. 

The following classification of Fire Districts for the 
purpose of protecting the forests from fire is made by 
Section 52 : 

The commission, for the prevention of forest fires and the 
extinguishment of fires burning or threatening forests, shall, in 
the fire towns, maintain a force of forest rangers, observers and 
fire wardens. It shall maintain an approved fire protective system, 
including fire observation stations and other equipment necessary 
to prevent and extinguish forest fires. The territory included 
"within the fire towns shall be divided into fire districts, each of 
which shall be in charge of a district forest ranger. 

The commission may establish a forest fire protective system in 
such other parts of the state as it may deem necessary where there 
are contiguous areas of forest land aggregating seventy-five thou- 
sand acres or upwards. In such regions the commission may estab- 
lish, equip and operate fire observation stations with the necessary 
accessories, prepare and post fire notices, organize a fire protective 
force, and require the town authorities to perform tlieir duties in 
forest fire protection. If the town supervisor fails to certify to the 
conservation commission by February fifteenth of any year a list 
of the fire wardens for such town then the conservation commission 
may appoint necessary fire wardens. 

In the towns other than the fire towns the town supervisor shall 
be superintendent of fires in his town and he shall be charged 
with the duty of preventing and extinguishing forest fii'es. He 
shall have the power and is hereby required to appoint necessary 
and competent fire wardens. On or before February fifteenth of 
each year, the town supervisor shall state to the commission, in 
writing, the names of the persons whom he appoints to act as fire 
wardens during the current calendar year. 

See chapter 158 of the Laws of 1916. 



32 GrAME Law Gtuide 

In order to finance and carry into effect the provisions 
of this article the following is prescribed by Section 53 : 

The state comptroller shall have, subject to the approval of the 
governor, the authority to make, on behalf of the state, a temporary 
loan not exceeding one hundred thousand dollars in any fiscal year, 
for the use of the conservation commission in protecting the forests 
and extinguishing fixes as provided by this article upon the cer- 
tification of the conservation commission that an emergency exists 
whereby through insuflSciency of appropriations it is found to be 
impossible to protect the forests from fire. The comptroller shall 
thereupon borrow such sums as may be directed by the governor 
for such purposes and shall report such transactions to the legis- 
lature which shall thereupon apiDropriate the moneys borrowed. 
Section thirty-five of the finance law shall not apply to any 
indebtedness so incurred. 

All salaries and other expenses incurred by the commission and 
its employees in protecting the forests in the fire towns from fire 
shall be paid by the state. 

One-half of all expense incurred under subdivision two of this 
section in extinguishing fires actually burning, except salaries and 
expenses of regular employees, shall be a charge upon the town in 
which the fire burned. The commission shall, on or before Novem- 
ber twentieth of each year, transmit to the clerk of the board of 
supervisors of each county containing fire towns a summarj' state- 
ment of expenses incurred together with the amount charged 
against each town in such county. The said clerk shall immediately 
deliver such statement to the board of supervisors who shall there- 
vipon levy the said amount due from each town to the state npon 
the taxable property of such town bj' including the said amount 
in the sums to be raised and collected in the next levy and assess- 
ment of taxes therein, and the same shall be collected as other 
town taxes are collected and the amount due the state shall be 
paid by the supervisor to the conservation commission on or before 
May first following the levy thereof. 

If any j^erson incurs expenses fighting forest fires in a fire town, 
the commission may upon the receipt of satisfactory proof and 
accounts filed in its offices within sixty days from the time the 
expense was incurred audit and pay all or sucli portion tliereof as 
in its judgment the public interest requires. 

Any moneys necessarily expended by the state, a municipality, 
or any person in fighting forest fires may be sued for by the 
state, municipality or person expending the same and recovered 
from the person causing the fire. Such actions may be maintained 



Lands and Foeests 33 

in addition to other actions for damages or penalties and may be 
demanded in the same or separate actions. 

Towns other than fire towns may raise necessary funds for pre- 
vention and extinguishment of forest fires in their towns either 
by levy or by the supervisor making temporary loan. 

The comptroller may upon request of the conservation commis- 
sion advance, not to exceed five thousand dollars at any time, to 
said commission for the purpose of facilitating payment of fire 
accounts. 

Important provisions for the protection of forests from 
iire are made by Section 54 and it is essential to note that 
unless the statute is by terms limited to a particular terri- 
tory such as fire towns or towns adjacent to them, it is 
applicable to all forest lands in the State: 

1. Proclamation by governor. Whenever, by reason of drought, 
the forests of the state are in danger of fires which may be caused 
by hunters, fishermen, trappers, or campers, the governor shall 
have the power to determine and shall determine and declare that 
such pursuits are contrary to the public interest, and shall have the 
further authority to forbid by proclamation any person or persons 
carrying on such pursuits in so much of the territory included 
witliin the fire towns as he deems the public interest requires. 
Such proclamation shall be in full force and effect at the expira- 
tion of twenty-four hours after notice is given in the manner 
the governor may determine. 

The force of this provision is to be borne in mind in 
connection with the open season on fish and game in the 
territory referred to and is to be read with Section 176 
discussed in Chapter VI. 

2. Top lopping evergreen trees. Every person who shall witliin 
any of the fire towns fell or cause to be felled or permit to be 
felled any evergreen tree for sale or other purposes shall cut off 
or cause to be cut off from the said tree at the time of felling the 
said tree, unless othenvise authorized by the commission before 
the trees are felled, all the limbs thereof up to a point where the 
trunk of said tree has a longest diameter which does not exceed 
three inches, unless the said tree be felled for sale and use with 
the limbs thereon or for use with the limbs thereon. 

3. Fires generally. No fires shall be set on or near forest land 

3 



34 Game Law Guide 

and left unquenched; no fire shall be set which will endanger the 
property of another; no person shall set forest land on fire; 
no person shall negligently suffer fire on his own property to 
extend to property of another; no person shall use combustible 
gun wads or carry naked torches on forest lands; no fire shall be 
set in or near forest land in connection with camping without all 
inflammable material having first been removed for a distance of 
three feet around the fire; no person shall drop, throw, or other- 
wise scatter lighted matches, burning cigars, cigarettes or tobacco; 
no person shall deface or destroy any notice posted containing 
forest fire warnings, laws, or rules and regulations. 

4. Unpiloted hot air balloons. No unpiloted hot air balloons 
shall be sent up in any fire town or in a town adjacent thereto. 

5. Fires to clear land. No person shall set or cause to be set 
fire for the purpose of clearing land or burning logs, brush, stumps, 
or dry grass, in any of the fire towns, without first having obtained 
from the commission a written permit so to do. If such burning 
is done near forest lands and if there is danger of the fire 
spreading, a person designated to issue such permits must be 
present. 

6. Protection on steam plants. No device for generating power 
which bums wood, coke, lignite or coal shall be operated in, 
through or near forest land, unless the escape of sparks, cinders, 
or coals shall be prevented in such manner as may be required by 
the commission. 

7. Material adjoining rights of way. In fire towns brush, logs, 
slash or other inflammable material shall not hereafter be left 
within twenty-five feet of the right of way of a railroad or within 
twenty feet of the right of way of a public highway and consti- 
tutes a fire hazard, the conservation commission may order the 
owner to remove the same within twenty days. 

8. Deposit of inflammable material. No person shall deposit 
or leave in any of the fire towns, brush or inflammable material 
upon the right of way of highways. 

See section 1900 of the Penal Law. 

In this connection the provisions of Section 1421 of the 
Penal Law are applicable and vital : 

A person who, under circumstances not amounting to arson in any 
of its degrees: 

1. Wilfully burns or sets fire to any grain, grass or growing crop, 
or standing timber, or to any buildings, fixtures or appurtenances to 
real property of another; or 



Lands and Forests 35 

2. Wilfully sets fire to, or assists another to set fire to any wild, waste 
or forest lands, belonging to the state or to another person whereby 
such forests are injured or endangered; 

Is guilty of a felony and is punishable by imprisonment for not more 
than ten years or by a fine not more than two thousand dollars, or by 
both. 

In order to secure proper protection to the forests 
from fire the railroads which operate through such terri- 
tory are subject to the following restrictions as set forth 
in Section 55: 

1. Railroad patrol. All railroads shall, on such parts of their 
rights of way as are operated through forest lands, maintain from 
April first to November fifteenth of each year a sufficient number 
of competent fire patrolmen unless relieved by the commission. 
The railroad shall file in the office of the commission on or before 
April first of each year a complete list of such patrol indicating 
the names of the men, their post-office addresses and portion of 
right of way assigned each patrolman. If any changes are sub- 
sequently made similar data shall be furnished on request of the 
commission. 

2. Clearing rights of way. The right of way of all railroads 
which are operated through forest lands shall be kept cleared of 
all inflammable material whenever required by the commission. 

3. Locomotives to he equipped. No locomotive shall be operated 
unless equipped with fire protective devices of ashpan and front 
end which have been approved by the commission. Such devices 
shall be maintained and properly used. 

4. Reports of fires. A verified report of every forest fire which 
originates on the right of way or within two hundred feet thereof 
in any of the fire towns or protected forest lands, shall be prepared 
by the railroad concerned, upon blanks furnished by the com- 
mission, and filed in the office of the commission within ten days 
after such fire occurs. 

5. Examination of engine and records. Every railroad com- 
pany shall examine each coal burning locomotive each day it is 
operated between March first and December first, and record the 
condition of the fire protective devices in a book kept for that 
purpose. Such book shall be kept on file and be accessible to 
inspectors of the conservation commission. 

6. Deposit of coals, et cetera. Fire, live coals or hot ashes shall 
not be deposited unless properly protected upon any track or right 
of way on or near forest land. 



36 GrAME Law Guide 

7. Use of protective devices. Employees of a railroad shall at 
all times use in a proper and effective manner the fire protective 
appliances provided by such railroad. 

The provisions of the above section are generally 
applicable to all railroads operating through all forest 
lands in the State. 

See People v. Long Island R. R. Co., 126 A. D. 477, 194 
N. Y. 130 (1909). 

In case of damage by forest fire negligently caused the 
injured party may maintain actions in accordance with 
such of the following provisions of Section 56 as are 
applicable thereto and shall have redress therefor: 

1. Injury to state lands. Any person who causes a fire which 
bums on or over state lands shall be liable to the state for treble 
damages and, in addition, to a penalty of teyi dollars for every 
tree killed by such fire. 

2. Injury to municipal or private lands. Any person who causes 
a fire which bums on or over lands belonging to another person 
or to a municipality shall be liable to the party injured for 
actual damages in case of fire negligently caused or for damages 
at the rate of one dollar for each tree killed or destroyed in case 
of fire wilfully caused. 

3. Becovery for damages from fires. The state, a municipality 
or any person may sue for and recover under subdivisions one or 
two of this section, however distant from the place where the fire 
was set or started and notwithstanding the same may have burned 
over and across several separate, intervening and distinct tracts, 
parcels or ownerships of land. 

While a general liability for fires exists apart from 
the statute, on the ground of negligence, this section, par- 
ticularly Subdivision 3, appears definitely to have dis- 
posed of the doctrine laid down in the cases of Ryan v. 
New York Central R. Co. 35 N. Y. 210 (1866), and Penn- 
sylvania R. Co. V, Kerr, 62 Pa. St, 353, and such authori- 
ties as have followed them to the effect that distance. 



Lands and Forests 37 

intervening tracts, etc., may destroy the liability. It has 
also settled the matter of the measure of damages. 

See O'Neil v. N. Y., 0. & W. R. Co., 115 N. Y. 579. 

People V. N. Y. C. & H. R. R. R. Co., 213 N. Y. 136 (1914). 
People V. L. I. R. R. Co., 149 A. D. 765 (208 N. Y. 541). 

4. MetJiod of computing value of state property. Damages to 
state lands and timber shall be ascertained and determined at the 
same rate of value as if such property were privately owtied. 

5. Prima facie cause on right of way. The fact that a fire 
originates upon the right of way of a railroad shall be prima facie 
evidence that the fire was caused by negligence of the railroad 
company. 

6. Prima facie cause in clearing lands. Whenever a fire has 
been set for the purpose specified in subdivision five of section 
fifty-four in any of the fire towns it shall be prima facie evidence 
that the fire was started by the oxvner or occupant of the land. 

In order to encourage and secure from land owners, 
generally, more intimate co-operation in reaching results 
under Article IV, it is provided by Section 57 : 

In consideration of the public benefit to be derived from the 
planting and growing of forest trees, and to the end that the 
growth of forest trees may be encouraged, and the water supply 
of the state protected and conserved, and that floods may be pre- 
vented, the owner of any waste, denuded or wild forest lands, 
of the area of five acres or upwards, within the state, which are 
unsuitable for agricultural purposes, Avho shall agree with the 
commission to set apart for reforestation or for forest tree culture, 
the whole, or any specific portion of such waste, denuded or wild 
forest lands, of the area of five acres or upwards, may apply to 
the conservation commission, in manner and form to be prescribed 
by it, to have such lands separately classified as lands suitable for 
reforestation or underplanting within the purposes and provisions 
of this section. 

Each application for such classification shall be accompanied 
by a plot, and description of the land, and shall state the area, 
character and location thereof, and such other information in 
reference thereto as the commission may require; such application 
shall be accompanied by a certificate of the assessors of the tax 
district or districts in which said lands are located, which shall set 



38 GrAME Law Guide 

forth the assessed valuation of. said lands for the last five years 
preceding the date of such application; or if said lands have not 
been separately assessed during any part of said period or the 
timber has been removed therefrom at any time during said period 
of five years, by a sworn statement of the assessors of the value 
of said lands, which lands shall be valued at the same rate as 
other waste, denuded or wild forest lands in said tax district simi- 
larly situated, such application shall also contain a declaration 
that the owner intends to reforest or underplant the lands described 
in such application with such number and kind of trees per acre 
and in such manner as the commission shall specify, and to comply 
with all reasonable rules and regulations of the commission in 
reference to future care and management of said lands and trees. 

If it appears from said application and certificate or sworn 
statement that said lands are suitable for reforestation or under- 
planting purposes and have not been assessed during the period 
of five years next preceding the date of such application at an 
average valuation of more than five dollars per acre, or that similar 
lands in said vicinity have not been assessed for more than five 
dollars per acre, the said commission shall, as soon as practicable 
after tlie receipt of such application, cause an examination to be 
made of the land for the purpose of determining whether or not 
it is of a character suitable to be reforested or underplanted and 
to be classified as such. 

After such examination if the commission shall determine that 
such lands are suitable for reforestation or underplanting, it is 
hereby empowered to enter into a written agreement with the 
owner, which agreement shall be to the effect that the commission 
will furnish said owner, at a price not to exceed cost of production, 
trees to be set out upon said lands, the kind and number to be 
prescribed by the commission, and to be set forth in said agree- 
ment; that the owner will set out upon said land the number and 
kind of trees per acre designated by the commission; and that 
said land will not be used for any purpose other than forestry 
purposes, during the period of exemption, without the consent of 
the commission ; and that said lands and the trees thereon will be 
managed and protected at all times during the period of said 
exemption in accordance with the directions and instructions of 
the commission. » 

Said agreement shall be recorded in the office of the county 
clerk of the county where the lands are situated, and the provisions 
thereof shall be deemed to be and be covenants running with the 
land. Within one year after the making of such agreement, said 
lands shall be planted by the owner with the number and kind of 



Lands and Forests 39 

trees specified therein; and the owner shall file with the commis- 
sion an affidavit making due proof of such planting, which affidavit 
shall remain on file in the office of said commission. Upon the 
filing of such affidavit the commission shall cause an inspection 
of such lands to be made by a competent forester who shall make 
and file with said commission a written report of such inspection. 
If the commission is satisfied from said affidavit and report that 
the lands have been forested in good faith as provided in said 
agreement, it shall make and execute a certificate under its seal, 
and file the same with the county treasurer of the county in which 
the lands or any part thereof so forested are located, which cer- 
tificate shall set forth a description of said lands, the area and 
the owner thereof, the town in which the same are situated, a state- 
ment that the land has been separately classified for taxation in 
accordance with the provisions of this section and a valuation in 
excess of which, said lands shall not be assessed for the period 
of thirty-five years, which valuation shall not in any event be 
greater than the average valuation at which the same lands were 
assessed for the last five years preceding the date of said appli- 
cation, or the value of such lands as appears by the aforesaid sworn 
statements of the assessors of such tax district, and a statement 
that the trees and timber thereon shall be exempt from taxation 
during said period. 

Upon the filing of such certificate it shall be the duty of the 
county treasurer to file with the assessors of each tax district in 
which the lands described are located, a certified copy thereof, and 
the assessors of such tax district shall place the lands according to 
the description contained in said certificate upon the next assess- 
ment-roll, prepared for the assessment of lands within such tax 
district, at a valuation not to exceed the amount stated in said 
certificate, and not to exceed the assessed valuation of similar lands 
in said tax district ; and said assessors shall insert upon the margin 
of said assessment-roll opposite the description of said lands, a 
statement that said lands shall not be assessed during the period 
of thirty-five years at a value in excess of said amount and that 
the trees and timber growing upon said land shall be wholly 
exempted from taxation during said period; and said assessors 
shall also insert upon the margin, of said assessment-roll the date 
of expiration of said exemption. Such lands shall be assessed and 
continue to be assessed, and carried in such manner, upon the 
assessment-rolls of such towns until the end of the exemption 
period. 

In the event that lands so classified shall, in the judgment of 
the commission, cease to he used exclusively for forestry purposes 



40 Game Law Guide 

to the extent provided in the agreement between the conservation 
commission and the owner, or that said owner has violated its terms, 
or any reasonable iniles and regulations of the commission in 
respect to the use of or the cutting of timber on said lands, the 
exemption from taxation provided in this section shall no longer 
apply; or at the election of the commission such owner may be 
also restrained from said acts by injunction; and the assessors 
having jurisdiction shall, upon the direction of the commission, 
assess said lands against the owner at the value, and in the manner 
provided by the tax law for general assessment of land. 

The planting or underplanting of a tract in forest trees in com- 
pliance with the agreement as provided in this section shall be 
taken and deemed to be an acceptance hy the owner of the exemp- 
tion privileges herein granted and of the conditions herein imposed ; 
and in consideration of the public benefit to be derived from the 
planting, underplanting, cultivation and growth of such trees the 
exemption of such trees from taxation and the taxation of land 
upon which such trees are grown as herein provided, shall be con- 
tinued and is hereby assured; and the right to such exemption and 
taxation shall be inviolable and irrevocable as a contract obliga- 
tion of the state, so long as the owner of the land so planted shall 
fully comply with and perform the conditions of such contract not 
exceeding said period of thirty-five years. 

Supplemental to the above enactment are Sections 16 
and 17 of the Tax Law. 

Section 16 provides for certain exemptions and reduc- 
tions in assessment of lands planted with trees for for- 
estry purposes or in other words reforested lands: 

Whenever the owner of lands, to the extent of one or more acres 
and not exceeding one hundred acres, shall plant the same for forestry 
purposes with trees to the number of not less than eight hundred to 
the acre, and whenever the owner of existing forest or hrtish lands 
to the extent of owe or more acres and not exceeding one hundred acres, 
shall underplant the same with trees, to the number of not less than 
three hundred, to the acre, and proof of that fact shall be filed with 
the assessors of the tax district or districts in wliich such lands are 
situated as hereinafter provided, such lands so forested shall be exempt 
from assessment and taxation for any purpose for a period of thirty- 
five years from the date of the levying of taxes thereon immediately 
following such planting, and such existing forest or brush lands so 
underplanted shall be assessed at the rate of fifty per centum of the 



Lands and Forests 41 

assessable valuation of such land exclusive of any forest growth 
thereon for a period of thirty-five years from the date of the levying 
of taxes thereon immediately following such underplanting. 

The owner or owners of lands forested as above provided, in order 
to secure the benefits of this section, shall file with the conservation 
commission an affidavit making the due proof of such planting or 
underplanting and setting forth an accurate description of such lands, 
the town and county in which the same are situated, the number of 
trees planted or underplanted to the acre and the number of acres so 
forested, which affidavit shall remain on file in the office of said com- 
mission. Upon the filing of such affidavit it shall be the duty of the 
conservation commission to cause an inspection of such forested lands 
to be made by a competent forester or other employee of said commis- 
sion who shall make and file with said commission a written report of 
such inspection. 

If the commission is satisfied from the said affidavit and the report 
of inspection that the lands have been forested as above provided, in 
good faith and by adequate methods to produce a forest plantation, and 
are entitled to the exemption of assessment or to a reduction of assess- 
ment as provided in this section, it shall make and execute a certificate 
under the seal of its office, and file the same with the county treasurer 
of the county in which the lands so forested are located, which cer- 
tificate shall set forth a description of the lands affected by this sec- 
tion, the area and owner or owners thereof, the town or towns in which 
the same are situated, the description upon the last assessment-roll 
which included said lands, the period of exemption or reduction of 
assessment to which such lands are entitled and the date of the expi- 
ration of such exemption or reduction of assessment. Upon the filing 
of such certificate it shall be the duty of the county treasurer to file 
with the assessors of the tax district in which the lands described 
therein are located within ten days after the receipt thereof a certi- 
fied coj^y of such certificate, and the assessors of such tax district 
shall place the lands according to the description contained in said 
certificate upon the next assessment-roll i:)repared for the assessment 
of lands within such tax district, and shall exempt, or reduce the assess- 
ment upon, the lands so described as hereinbefore provided, and shall 
insert upon the margin of said assessment-roll opposite the descrip- 
tion of said lands, a statement that in accordance with the provisions 
of this section of the tax law said lands are exempt from taxation or 
that the assessment thereof is reduced fifty per centum as the case 
may be and insert also in the margin the date of the expiration of 
such exemption or reduction of assessment and such lands shall con- 
tinue to be exempted, assessed and carried in such manner upon the 



42 Game Law Guide 

assessment-rolls of such town until the date of the expiration of such 
exemption or reduction of assessment. 

Lands which have been forested as above provided within three years 
prior to the taking effect of this section may come within its pro- 
visions if application therefor is made to the conservation commission 
within one year from the time when this section takes effect, but except 
as provided by this section the period of exemption or reduction as 
certified to by the conservation commission shall not exceed the period 
of thirty-five years from the date of the original planting. Lands situ- 
ated within twenty miles of the corporate limits of a city of the first 
class, or within ten miles of the corporate limits of a city of the second 
class, or within five miles of the corporate limits of a city of the third 
class, or within one mile of the corporate limits of an incorporated 
village shall not be entitled to the exemption or reduction of assess- 
ment provided for by tliis section. 

In the event that lands exempted or reduced in taxation as above 
provided shall, by act of the owner or otherwise, at any time during 
the period of exemption or reduction in taxation cease to be used exclu- 
sively as a forest plantation to the extent provided by this section to 
entitle such land to the privileges of this section, the said exemption and 
reduction in taxation provided for in this section shall no longer apply 
and the assessors having jurisdiction are hereby empowered and directed 
to assess the said lands at the value and in the manner provided by the 
tax law for the general assessment of land. 

If any land exempted under this section continues to be used exclu- 
sively for the growth of a planted forest after the expiration of the 
period of exemption provided hereby, the land shall be assessed at its 
true value and the timber growth thereon shall be exempt from taxa- 
tion, except if such timber shall be cut before the land has been duly 
assessed and taxes regularly paid for five consecutive years after the 
exemption period has expired, such timber growth shall be subject to 
a tax of five per centum of the estimated stumpage value at the time 
of cutting, unless such cuttings are thinnings for stimulating growth 
and have been made under the supervision of the conservation 
commission. 

Whenever the owner shall propose to make any cutting of such 
timber growth for a purpose other than for thinning as above pro- 
vided, he shall give thirty days' notice to the assessors of the tax 
district on which the land is located, who shall forthwith assess the 
stumpage value of such proposed cutting, and such owner shall pay 
to the collector of the town in which such land is situated before cutting 
such timber five per centum of such assessed valuation. If such owner 
shall fail to give such notice and pay such taxes he shall be liable to a 



Lands and Forests 43 

penalty of three times the amount of such tax and the supervisor of 
the town may bring an action to recover the same for the benefit of 
the town in any court of competent jurisdiction. 

Section 17 provides for somewhat similar exemption 
and reduction in assessment of lands maintained as wood 
lots or lands kept forested: 

In order to encourage the maintenance of ivood lots by private owners 
and the practice of forestry in the management thereof, the owner 
of any tract of land in the state, not exceeding fifty acres, which is 
occupied by a natural or planted growth of trees, or by both, which 
shall not be situated within twenty miles of the corporate limits of a 
city of the first class, nor within ten miles of the corporate limits of a 
city of the second class, nor wdthin five miles of the corporate limits 
of a city of the third class, nor within one mile of the corporate limits 
of an incorporated village, may apply to the conservation commission 
in manner and form to be prescribed by it, to have such land sepa- 
rately classified for taxation. Application for such classification shall 
be made in duplicate and accompanied by a plot and description of 
the land, and such other information as the commission may require. 
Upon the filing of such application it shall be the duty of the com- 
mission to cause an inspection of such land to be made by a com- 
petent forester for the purpose of determining whether or not it is 
of a suitable character to be so classified. 

If the commission shall determine that such land is suitable to be so 
classified, it shall submit to the owner a plan for the further manage- 
ment of said land and trees and shall make and execute a certificate 
under the seal of the commission and file the same with the county 
treasurer of the county in which the land is located, which certificate 
shall set forth a description and plot of the land so classified, the area 
and the owner thereof, the town or towns in which the same is situated, 
and that the land has been separately classified for taxation in accord- 
ance with the provisions of this section. Upon the filing of such 
certificate it shall be the duty of the county treasurer to file with the 
assessors of the tax district in which the land described therein is 
located, within ten days after receipt thereof, a certified copy of such 
certificate. So long as the land so classified is maintained as a wood 
lot, and the owner thereof faithfully complies with all the provisions 
of this section and the instiiictions of the commission, it shall be 
assessed at not to exceed ten dollars per acre and taxed annually on 
that basis. In fixing the value of said lands for assessment, the 
assessors shall in no case take into account the value of the trees 



44 Game Law Guide 

growing thereon, and said land shall not be assessed at a value greater 
than other similar lands witliin the same tax district. 

The assessors of each tax district where said land so classified is 
located shall insert upon the margin of said assessment and opposite 
tlie description of such land a statement that said land is assessed in 
accordance with the provisions of this section. In the event that land 
so classified as above prescribed shall at any time by act of the owner 
or otherwise cease, in the judgment of the commission, to be used 
exclusively as a wood lot to the extent provided by this section to 
entitle the owner of such land to the privileges of this section, the 
exemption and valuation in taxation provided for in this section shall 
no longer apply and the assessors having jurisdiction shall, upon the 
direction of the commission, assess the said land at the value and in 
the manner provided by the tax law for the general assessment of land. 

Whenever the owner shall propose to cut any live trees from said 
land, except for firewood or building material for the domestic use 
of said owner or his tenant, he shall give the commission at least 
thirty days' notice prior to the time he desires to begin cutting, who 
shall designate for the owner the kind and number of trees, if any, 
most suitable to be cut for the purpose for which they are desired, and 
the cutting and removal of the trees so designated shall be in accord- 
ance with the instructions of said commission. 

After such trees are cut and before their removal from the land, the 
owner shall make an accurate measurement or count of all of the trees 
cut and file with the assessors of the tax district a verified, true and 
accurate return of such measurement or count and of the variety and 
value of the trees so cut. The assessors shall forthwith assess the 
stumpage lvalue of the timber so cut, and such owner shall pay to the 
tax collector of the town in which such land is situated, before the 
removal of any such timber, five per centum of such valuation. If such 
owner shall fail to give such notices and pay such taxes he shall be 
liable to a jDenalty of three times the amount of such tax, and the 
supervisor of the town may bring an action to recover the same for 
the benefit of tlie town in any court of competent jurisdiction. 

Wherever possible within the limitations of the law 
and wherever practicable, every owner of land in the 
State should avail himself of the benefits of these pro- 
visions. The primary advaiitage is his and the aid 
afforded the conservation scheme can work him only 
profit in more forms than one. 

Here is also presented to associations organized for 
the advancement of the cause of fish and game a choice 



Lands and Forests 45 

chance to co-operate with the Commission and the farmer 
by encouraging the grasp of these opportunities and giv- 
ing reasonable financial aid to the establishment and 
maintenance of those forest growths which shelter and 
assure all wild life. 

The development of forest lands may be taken up by 
counties, cities, towns or school districts and they may 
acquire by purchase or gift or take over lands in their 
possession within their boundaries and use them for 
forestry purposes as provided in Section 60 : 

1. Power and authority. The governing board of a county, 
city, town or school district may appropriate money or issue bonds 
either for purchase of lands for the purposes herein provided, to 
establish forest plantations or for the care and management of 
forests. Such boards may undertake such work at regular or 
special meetings by majority vote of such board after two weeks' 
public notice setting forth the fact that such plan is contemplated 
and that moneys are to be appropriated for such purpose. 

2. Assistance and trees. The conservation commission may 
assist and advise such board in its reforesting work, and the com- 
mission may furnish trees for reforesting such publicly owned 
lands witJwut charge provided they are planted in accordance 
with the instructions of the commission. 

3. Use. Such governing board shall have full power and 
authority to acquire, maintain, manage and operate such forests 
for the benefit of the inhabitants of its district. 

4. Revenue. The net income from such lands shall be paid into 
the general fund of such municipal division and shall be used 
only upon order of its governing board. 

Over and above the foregoing propositions the Com- 
mission by Section 59 has, with the approval of the 
governor, power and authority to appropriate real prop- 
erty as follows : 

1. Purposes: (a) The commission may enter upon and take 
possession of any lands or tvaters or both, or of any forests and 
rights in timber upon such lands, or upon any part, or portion 
thereof, within the Adirondack or Catskill parks or adjacent 
thereto, the appropriation of which, in the judgment of said 
commission, shall be necessary for public park purposes, or for 



46 Game Law Guide 

the protection and conservation of the lands, forests and waters 
within the state, and 

See section 50, subdivision 6. 

(b) May enter upon and take possession of any lands or waters 
or both, within the state that may be necessary, in the judgment 
of said commission, for the purpose of artificial propagation of 
food and game fish for restocking the public waters of the state. 

See chapter IV on general powers as to fish and game. 

2. Description of land. An accurate description of such prop- 
erty so entered upon and appropriated shall be made by the 
commission, who shall certify under its seal that the description 
is correct, and shall endorse thereon a notice that the property 
described therein is appropriated by the people of the state of 
New York for the purpose described in this section. The original 
of such description and certificate shall be filed in the office of 
the secretary of state. The conservation commission may make 
such additional copies of this certificate and description as may 
be necessary and certify the same. 

3. Service of notice. The said commission shall thereupon cause 
a duplicate of said description and certificate, with notice of the 
date of filing thereof in the office of said secretary of state, to be 
served on the owner or owners of the lands, forests and rights in 
timber upon such lands and waters so appropriated; and from 
the time of such service the entry upon and appropriation by the 
people of the state of the property described in such notice shall be 
deemed complete, and thereupon such property shall become, and 
be, the property of the people of the state. Such notice shall be 
conclusive evidence of any entry and appropriation by the state; 
but the service of such notice shall raise no presumption that the 
lands, forests, and rights in timber upon such lands described 
therein are private property. 

4. Manner of service. Service of the notice and papers pro- 
vided for under subdivision three must be personal if the person 
to be served can be found within the state. If the person to be 
served falls within any of the classes mentioned in section four 
hundred and thirty-eight of the code of civil procedure, the pro- 
visions of article second, title one of chapter five of the code of 
civil procedure relating to the service of a summons in an action 
in the supreme court, shall apply, so far as practicable, to the 
service of such notice and papers. 

5. Description and certificates to be recorded. Said commis- 
sion shall thereupon cause a duplicate of such description, cer- 



Lands and Forests 47 

tifieate, and notice of filing, with an affidavit of due service thereof 
on such owner or owners, to be recorded in the books used for 
recording deeds in the office of the clerk of any county in this 
state in which any of the property described therein may be situ- 
ated; and the record of such notice, and of such proof of service, 
shall be presumptive evidence of due service thereof. 

6. Adjustment of claims by agreement. Claims for the value 
of the property appropriated, and for legal damages caused by 
any such appropriation, may be adjusted by the commission, if 
the amount thereof can be agreed upon with the owner or owners 
thereof. Upon making any such adjustment and agreement the 
commission shall deliver to the comptroller a certificate stating 
the amount due to said owner on account of such appropriation 
of his land or other property, and the amount so fixed shall be 
paid by the treasurer upon the warrant of the comptroller. 

7. Court of claims, jurisdiction of. If the commission and the 
owner or owners of the property so appropriated fail to agree 
upon the value of such property, or upon the amount of legal dam- 
ages resulting from such aj^propriation, within one year after the 
service of the notice and papers provided for in section sixty-eight 
of this chapter, such owner may, within two years after the service 
of such notice and papers, present to the court of claims a claim 
for the value of such land and legal damages; and said court 
shall have jurisdiction to hear and determine such claim and 
render judgment thereon. Upon filing in the office of said com- 
mission and in the office of the comptroller, a certified copy of the 
judgment of the court of claims, and a certificate of the attorney- 
general that no appeal from such judgment has been or will be 
taken by the state, or if an appeal has been taken, a certified copy 
of the final judgment of the appellate court affirming in whole or 
in part the judgment of the court of claims, the comptroller shall 
issue his warrant for the payment of the amount due the claimant 
by such judgment, with interest from the date of the judgment 
until the thirtieth day after the entry of such final judgment, and 
such amount shall be paid by the treasurer. 

8. Court of claims to examine property. The court of claims, 
if requested by the claimant or the attorney-general, shall examine 
the real property affected by the claim of damages for the appro- 
priation thereof and take testimony in relation thereto in the 
county where such property or a part thereto is situated. 

9. Owner may reserve timber on land appropriated. 1. The 
owner of land taken under this article may, with the written con- 
sent of the conservation commission, and within the limitations 
hereinafter prescribed, reserve trees thereon not less than eight 



48 Game Law Guide 

inches in diameter, hreast high, at the time of the service of the 
notice provided the removal of such trees will not destroy the forest 
cover. Such reservation must be exercised within six months after 
the service upon the owner of a notice of the appropriation, by 
the owner sei-ving upon such commission a written notice that he 
elects to reserve such trees. If such notice be not served by the 
owner within the time above specified he shall be deemed to have 
waived his right to such reservation, and such trees shall there- 
upon become and be the property of the state. The presentation 
of a claim to the court of claims before the service of a notice 
of reservation shall be deemed a waiver of the right to such 
reservation. 

10. Reservation on lands purchased. Land acquired by pur- 
chase may be taken subject to the reservation of the trees thereon 
down to eight inches in diameter, hreast high, at the time of such 
purchase, with the right to the owner to remove the same within 
the time specified in the next section, or upon agreement between 
the commission and the owner, subject to any lease, mortgage, or 
other incumbrance, not extending fifteen years beyond the date of 
acquisition. The amount or value of any such lien, incumbrance 
or timber reservation, upon land so purchased, shall be deducted 
from the purchase price thereof. 

11. Right to reserve timber restricted. The right to reserve 
timber, and the manner of exercising and consummating such 
right, are subject to the following restrictions, limitations and 

' conditions : 

(a) Timber within twenty rods of a lake, pond or river cannot 
be reserved. Under the supervision of the commission roads may 
be cut or built across or through such excepted space of twenty 
rods, for the purpose of removing trees from adjoining lands, and 
the person reserving such timber on the adjoining lands, his legal 
representatives or assigns, shall have the right, which right shall 
be deemed a part of such reservation, to construct such roads, 
through and across such excepted strip, as may be necessary to 
remove the timber so reserved; but in constructing such roads 
only such trees shall be cut as are within the limits of such roads. 
The commission may prescribe the manner of all such roads and 
may permit the use of any dead, down or other necessary timber 
for the construction only of roads, skidways, lumber camps, or 
for fuel, which right shall also be deemed a part of the soft wood 
timber reservation by the owner. No trees or timber shall be cut 
for the construction of roads, camps or other purposes, except 
such as are reserved by the owner, or for which permission to cut 
has been given as provided in this section. 



Lands and Forests 49 

(b) All tinibei- reserved by the owner must be removed from 
the laud within fifteen years after the service of notice of reser- 
vation or the making of the contract of pui'chase, subject to rea- 
sonable regulations to be prescribed by the commission; such land 
shall not be cut over more than once, and said commission may 
prescribe reasonable regulations for the purpose of enforcing this 
limitation. All timber reserved, and not removed from the land 
within such time, shall thereupon become and be the property of 
the state and all title or claim thereto by the original owner, his 
legal representatives or assigns, shall thereupon be deemed 
abandoned. 

12. Compensation for reserved timber lands. A person who 
reserves timber as provided in this article shall not be entitled 
to any compensation for the value of the land purchased or taken 
and appropriated by the state, or for any damages caused thereby 
until 

(a) The timber so reserved is all removed and the object of the 
reservation fully consummated; or 

(b) The time limited for the removal of such timber has fully 
lapsed or the right to remove any more timber is waived by a 
written instrument filed with said commission; and 

(c) Said commission is satisfied that no trespass on state lands 
has been committed by such owner, or his assigns, or legal repre- 
sentatives; that no timber or other property of the state, not so 
reserved, has been taken, removed, destroyed, or injured by him 
or them, and that a cause of action in behalf of the state does not 
exist against liim or them for any alleged trespass or other injury 
to the property or interests of the state; and 

(d) That the owner, his assignee or other legal representatives, 
has fully complied with all rules, regulations and requirements 
of said commission concerning the use of streams, or other prop- 
erty of the state, for the purpose of removing such timber. Pro- 
vided, however, that said commission may at any time by its cer- 
tificate filed with the comptroller direct the payment to the owner 
of sueli land, his legal representatives or assigns, of the compen- 
sation therefor, or a part thereof at such time and upon such con- 
ditions as may be set forth in the certificate. 

13. Timber reserved; value of land; Jiow determined. If timber 
be reserved, its value at the time of making an agreement between 
the owner and said commission for the value of the land so 
appropriated, and the legal damages caused thereby, or at the 
time of the presentation to the court of claims of a claim for 
such value and damages, shall be taken into consideration in 



50 GrAME Law Guide 

determining the compensation to be awarded to the owner on 
account of such apj^ropriation either by such agreement or by 
the judgment rendered upon such a claim. 

14. Adjustment of claims for trespass or other injuries. In 
cases of trespasses or other injuries to lands or property purchased 
or acquired by the state the commission may settle and adjust any 
claims for damages due to the state on account of any such tres- 
passes or other injuries to property or interests of the state, or 
penalties incurred by reason of such trespasses or otherwise, and 
the amount of such damages or penalties so adjusted shall be 
deducted from the original compensation agreed to be paid for the 
land, or for damages, or from a judgment rendered by the court 
of claims on account of the appropriation of such land. A judg- 
ment recovered by the state for such a trespass or for a penalty 
shall otherwise be deducted from the amount of such compensa- 
tion or judgment. 

15. Judgments. When a judgment for damages is rendered for 
the appropriation of any lands or waters for the purposes specified 
in this article, and it appears that there is any lien or incumbrance 
upon the property so appropriated, the amount of such lien shall 
be stated in the judgment, and the comptroller may deposit the 
amount awarded to the claimant in any bank in which moneys 
belonging to the state may be deposited, to the account of such 
judgment, to be paid and distributed to the persons entitled to the 
same as directed by the judgment. 

16. Warrants. A warrant shall not be drawn by the comp- 
troller for the amount of compensation agreed upon between the 
owner and said commission, nor for the amount of a judgment 
rendered by the court of claims, until a further certificate by the 
commission is filed with the comptroller to the effect that the 
owner has not reserved any timber and that he, his assignee or 
other representative, has complied with the provisions of this 
article, or has otherwise become entitled to receive the amount of 
the purchase price, award or judgment. 

17. Interest. If timber is reserved upon land purchased or 
appropriated as provided by this article, interest is not payable 
upon the purchase price, or the compensation which may be 
awarded for the value of such land, or for damages caused by 
such appropriation, except as provided in subdivision seven of 
this section. 

18. Costs and disbursements; when offer made. If an offer is 
made by said commission for the value of land appropriated or for 
damages caused by such appropriation, and such offer is not 



Lands and Forests 51 

accepted, and the recovery in the court of claims exceeds the offer, 
the claimant is entitled to costs and disbursements as in an action 
in the supreme court, which shall be allowed and taxed by the 
court of claims and included in its judgment. If in such a case 
the recovery in the court of claims does not exceed the offer, costs 
and disbursements to be taxed shall be awarded in favor of the 
state against the claimant and deducted from the amount awarded 
to him; or if no amount is awarded, judgment shall be entered in 
favor of the state against the claimant for such costs and disburse- 
ments. If any offer is not accepted, it cannot be given in evidence 
on the trial. 

19, Removal of timber; use of streams. Persons entitled to cut 
and remove timber under this article may use streams or other 
waters of the state within the forest preserve counties for the 
purpose of removing such timber, under such regulations and con- 
ditions as may be prescribed or imposed by the commission. The 
persons using such waters shall be liable for all damages suffered 
by the state or any person caused by such use. 

In order to protect the lands described in this article 
the following provisions of Section 61 apply: 

1. Trees or timber. No person shall cut, remove or destroy any 
trees or timber or other property thereon or enter upon such lands 
with intent so to do. 

2. Structures. No buildings shall be erected, used or maintained 
upon the forest preserve except under permits from the commission. 

3. Agricultural use. No person shall use any portion of the 
forest preserve for agricultural purposes, nor shall cattle or 
domestic animals of any kind be permitted to graze thereon. 

4. Deposit rubbish. No person shall deposit or leave thereon 
any nibbish or other waste material. 

5. Transfer or lease. No person shall lease, transfer or accept 
any lease or transfer of any lands in the forest preserve or of any 
improvements thereon. 

6. Dispose of improvements. The commission may dispose of 
any improvements upon the forest preserve under such conditions 
as it deems to be to the public interest. 

7. Reforested lands. No person shall injure or cause to be 
injured any trees planted for the purpose of reforestation. 

8. Removal of materials generally. No person shall remove 
any material belonging to the state from the state lands without 
the authorization of the commission. 



52 GrAME Law Guide 

The terms of the above section apply more particularly 
to the present and future forest preserve ; but they also 
cover all lands within the embrace of the article and 
especially all trees planted in accordance with it. 

In the case of People v. Gaylord, 139 App. Div. 814 
(1910) it wa'sheld: 

Trees standing or growing upon the forest preserve or 
State land are property within the meaning of the 
statute covering larceny although the constitution pro- 
vides that such lands shall be forever occupied as wild 
lands and that timber shall not be sold or removed 
therefrom. 

Such timber cannot be deemed property without a 
value because of such constitutional provision. 

It is therefore larceny for one to cut and remove from 
the preserve or State lands the timber growing thereon. 

Compare People v. Kloek, 55 M. 46. 

The manufacturers of timber and the consumers of 
round wood or timber or wood for commercial purposes 
are required to report to the Cormnission annually, when 
called upon to do so, on blanks furnished, the amount of 
such materials used or made from trees grown in the 
state during the year. 

See section 58. 

In enforcement of the provisions of Article IV, fines 
and penalties are fixed by Section 63 : 

1. Any person who violates any provision of this article or who 
fails to perform any duty imposed by any provision thereof shall 
be guilty of a misdemeanor, and shall be liable or punishable by 
a fine of not less than ten nor more than one hundred dollars, or 
by imprisonment of not less than ten nor more than one hundred 
days, or by both such fine and imprisonment. 

2. The violation of any of the following provisions shall sub- 
ject the person guilty thereof to the following penalties in addition 
to those provided in subdivision one, of this section; section fifty- 
four, subdivision two, penalty of two dollars per tree; for failure 



Lands and Forests 53 

to comply with the i^rovisions of subdivision six of section fifty- 
four, penalty of twenty-five dollars per day; for violation of the 
several subdivisions of section fifty-five as follows : subdivisions 
one and two, ten dollars per mile per day; subdivision three, one 
hundred dollars per day per locomotive ; subdivision five, penalty 
of twenty-five dollars per day per place and. penalty of one hun- 
dred dollars for failure to show record of inspector; for violation 
of subdivision six, one hundred dollars for each offense. 

3. Any person who molests, injures, removes, destroys or with- 
holds supplies or other material maintained for forest fire protec- 
tion purposes shall be guilty of a misdemeanor. 

4. Any person who sets fire wilfully in violation of section 
fifty-four, subdivision three shall be guilty of a felony. 

5. Any person who cuts or causes to be cut any tree or trees 
upon the forest preserve shall be liable to a penalty of ten dollars 
per tree or treble damages or both. ' • 

6. In default of the payment of any fine or penalty imposed 
under this section, the defendant may be committed to jail until 
such fine or penalty is paid, but the term of confinement shall not 
exceed one day for each dollar of fine imposed. 

The statute now clears away all such objections as 
were made in People v. L. I. R. R. Co., 208 N. Y. 541 and 
People V. N. Y. C. R. R. Co., 213 N. Y. 136 on the measure 
of damages and the maximum of penalties. See the dis- 
cussion of fines, penalties and procedure in Chapter 
XVII. 

It may be well, however, at this juncture, to note that 
a criminal prosecution whether resulting in conviction 
or acquittal is not a bar to the subsequent civil action for 
the recovery of the penalty as distinguished from the 
fine. 

People V. Snyder, 90 A. D. 422. 

The repeal by Chapter 451 of the Laws of 1916, or any 
law or part thereof heretofore in force, does not affect or 
impair any act done, offense committed or right accruing, 
accrued or acquired, or liability, penalty, forfeiture or 
punishment incurred prior to the time when such repeal 
took effect, but the same may be enjoyed, asserted, 



54 Game Law Guide 

enforced, prosecuted or inflicted as fully and to the same 
extent as if such repeal had not taken place. 

See section 64. 

See section 94 of the General Construction Law. 

Chapter 451 of the Laws of 1916 took effect May 9, 
1916. 

Section 33 provides: 

Rules and regulations established by the commission for the 
enforcement of the provisions of article four of this chapter shall 
be entered by the commission in its book of minutes and at least 
three copies thereof posted in public places in the towns in which 
such rules and regulations apply, at least thirty days before the 
same shall take effect. 

Any person who violates any provision of any rule or regulation 
so established by the commission, pursuant to the provisions of 
this section shall be guilty of a misdemeanor and shall, upon con- 
viction, be subject to a fine of not to exceed one hundred dollars 
or imprisonment for not more than thirty days or by both such 
fine and imprisonment. 

General Regulations Covering the Use of State Lands 

The following rules and regulations are of general application to 
the State land under the jurisdiction of the Conservation Commission, 
and are to govern all of those who make use of this land. Regulations 
of special or local application may be adopted from, time to time: 

1. No fires except for cooking, warmth or smudge purposes are per- 
mitted. No fire shall be lighted until all inflammable material is 
removed to prevent its spread. 

2. Lighted matches, cigars, or cigarettes or burning tobacco must not 
be deposited or left where they may cause fires. 

3. No official sign posted or structure maintained under permit shall 
be defaced. Peeling of bark or injuring trees is prohibited. Dead or 
down wood may be used for fuel by temporary campers. 

4. Camps and adjacent grounds must be maintained in a clean and 
sanitary condition. Garbage and refuse must be either buried, removed 
or burned. Waste materials must not be thrown into the waters, or 
waters polluted. 

5. Each camper on islands of Lake George, St. Lavn-ence Reservation 
or other much frequented places, must provide a plentiful supply of 
chloride of lime and dirt, for disinfecting and covering any latrine used 
by him. All latrines must be cleaned and the contents burned or buried 



Lands and Forests 55 

at frequent intervals, in such manner as to prevent offensive odors, and 
above all to avoid pollution of the water supply. 

6. Canvas tents without platforms for use during short periods may 
be placed without a permit, but not in a trail or within 150 feet of any 
spring used for water supply. 

7. No tents (except those described under rule 6) or wooden struc- 
tures shall be erected, or maintained, except under written permission. 
Tar paper shall not be used, except for roofs of open camps erected 
under a permit. Structures erected under (a), (b) or (c) become the 
property of the State. The structures for which permits may be 
granted are as follows : 

(a) Open camps for transient use not to be occupied by the same 
person or persons more than three nights in succession or more than 
ten nights in any year. 

(b) Open camps for use of campers, hunters or fishermen may be 
occupied for reasonable periods. 

(c) Permanent tent platforms for summer camping purposes. Per- 
mit granted to use while occupied in good faith. Platform to be left 
for future use. When not in use permits may be given others to use. 

(d) Temporary tent platforms for summer camping. The platform 
to be erected and removed simultaneously with the tent. 

(e) Portable canvas houses for summer camping. 

8. No one may claim any particular site from year to year or the 
exclusive use of the same. 

9. The use of the forest preserve or the improvements thereon for 
private revenue or commercial purposes is prohibited. 

10. Any unoccupied tent or structure may be removed by the 
Commission. 

11. At St. Lawrence Reservation, where fireplaces are provided, fires 
must not be kindled elsewhere, nor shall tents on these islands be 
pitched less than 200 feet from any public fireplace or boat landing. 

12. No boat is entitled to the exclusive use of any dock built by the 
State. There must be free access for boats at all times. 

13. Dancing in any building erected by the State is prohibited. 

14. All campers will be held responsible for compliance with these 
rules, and any person responsible for injury of State property will be 
held liable for damages and penalties. 



CHAPTER III 



OWNERSHIP OF GAME 

The principle of ownership as applied to animals con- 
ceded to be wild, upon which Article V is built, presents 
three distinct features : 

First — Federal control. 
Second — State control. 
Third — Private property rights. 

Fedeeal Oonteol 

By virtue of its claimed sovereign rights over and 
interest in certain classes of wild animals particularly 
migratory birds, the federal government has by statute 
declared the fact and the extent of its jurisdiction. 

The Lacey Act, Chapter 553 of the Laws of 1900 (31 
Stat. 187), enacted to enlarge the powers of the depart- 
ment of agriculture, prohibit transportation by inter- 
state commerce of game killed in violation of local laws 
and for other purposes, declares : 

That the duties and powers of the department of agriculture are 
hereby enlarged so as to include the preservation, distribution, intro- 
duction, and restoration of game birds and other wild birds. The 
secretary of agriculture is hereby authorized to adopt such measures 
as may be necessary to carry out the purposes of tliis act and to 
purchase such game birds and other wild birds as may be required 
therefor, subject, however, to the laws of the various states and 
territories. 

The object and purpose of this act is to aid in the restoration of 
such birds in those parts of the United States adapted thereto where 
the same have become scarce or extinct, and also to regulate the intro- 
duction of American or foreign birds or animals in localities where they 
have not heretofore existed. 

[56] 



Ownership of Game 57 

Tlie secretary of agriculture shall from time to time collect and 
publish useful information as to the propagation, uses, and preserva- 
tion of such birds. 

And the secretary of agriculture shall make and publish all needful 
rules and regulations for carrying out the purposes of this act, and 
shall expend for said purposes such sums as congress may appropriate 
therefor. 

That all dead bodies or parts thereof, of any foreign game animals, 
or game or song birds, the importation of which is prohibited or the 
dead bodies, or parts thereof, of any wild game animals, or game or 
song birds transported into any state or territory, or remaining therein 
for use, consumption, sale, or storage therein, shall upon arrival in such 
state or territory be subject to the operation and effect of the laws of 
such state or territory enacted in the exercise of its police powers, to 
the same extent and in the same manner as though such animals and 
birds had been produced in such state or territory, and shall not be 
exempt therefrom by reason of being introduced therein in original 
packages or otherwise. This act shall not prevent the importation, 
transportation, or sale of birds or bird plumage manufactured from the 
feathers of barnyard fowl. 

Compare sections 178 and 179 of the Conservation Law. 

Chapter 231 of the U. S. Penal Laws (35 Stat. 1137), 
sections 241, 242, 243 and 244 further provides : 

§ 241. The importation into the United States, or any territory or 
district thereof, of the mongoose, the so-called " flying foxes " or fruit 
bats, the English sparrow, the starling, and such other birds and animals 
as the secretary of agriculture may from time to time declare to be 
injurious to the interests of agriculture or horticulture, is hereby pro- 
hibited; and all such birds and animals shall, upon arrival at any port 
of the United States, be destroyed or returned at the expense of the 
owner. 

No person shall import into the United States or into any teri;itory 
or district thereof, any foreign wild animals or bird, except under 
special permit from the secretary of agriculture : Provided, That noth- 
ing in this section shall restrict the importation of natural history 
specimens for museums or scientific collections, or of certain cage birds, 
such as domesticated canaries, parrots or such other birds as the 
secretary of agriculture may designate. 

The secretary of the treasury is hereby authorized to make regula- 
tions for carrying into effect the provisions of this section. 

§ 243. It shall be unlawful for any person to deliver to any common 
carrier for transportation, or for any common carrier to transport 



58 Game Law Guide 

from any state, territory, or district of the United States, to any other 
state, territory, or district thereof, any foreign animals or birds, the 
importation of which is prohibited, or the dead bodies or parts thereof 
of any wild animals or birds, where such animals or birds have been 
killed or shipped in violation of the laws of the state, territory, or 
district in which the same were killed, or from which they were shipped : 
Provided, That nothing herein shall prevent the transportation of any 
dead birds or animals killed during the season when the same may be 
lawfully captured, and the export of which is not prohibited by law in 
the state, territory, or district in which the same are captured or killed : 
Proiided further. That nothing herein shall prevent the importation, 
transportation, or sale of birds or bird plumage manufactured from 
the feathers of barnyard fowls. 

§ 243. All packages containing the dead bodies, or the plumage, or 
parts thereof, of game animals, or game or other wild birds, when 
shipped in interstate or foreign commerce, shall be plainly and clearly 
marked, so that the name and address of the shipper, and the nature 
of the contents, may be readily ascertained on an inspection of the 
outside of such package. 

§ 244. For each evasion or violation of any provision of the three 
sections last preceding, the shipper shall be fined not more than two 
hundred dollars; the consignee knowingly receiving such articles so 
shipped and transported in violation of said sections shall be fined not 
more than two hundred dollars; and the carrier knowingly carrying or 
transporting the same in violation of said sections shall be fined not 
more than two hundred dollars. 

The above sections 241, 242, 243, 244 take the place of sections 2, 3 
and 4 of the Lacey Act. 

The plumage provision of the tariff act of 1913 (38 
Stat. 148 and 155), as to rates, also provides: 

Feathers and downs, on the skin or otherwise, crude or not dressed, 
colored or otherwise advanced or manufactured in any manner, not 
especially provided for in this section, 20 per centum ad valorem; when 
dressed, colored, or otherwise advanced or manufactured in any manner, 
and not suitable for use as millinery ornaments, artificial and ornamental 
fruits, grains, leaves, flowers, and stems or parts thereof, of whatever 
material composed, not specially provided for in this section, 60 per 
centum ad valorem; boas, boutonnieres, wreaths, and all articles not 
specially provided for in this section, composed wholly or in chief value 
of any of the feathers, flowers, leaves, or other material herein men- 
tioned, 60 per centum ad valorem : Provided, That the importation of 
aigrettes, egret plumes or so-called osprey plumes, and the feathers. 



Ownership of Game 59 

quills, heads, wings, tails, skins, or parts of skins, of wild birds, either 
raw or manufactured, and not for seientitic or educational purposes, 
is hereby prohibited; but this provision shall not apply to the feathers 
or plumes of ostriches, or to the feathers or plumes of domestic fowls 
of any kind. 

Venison, and other game, 11/2 cents per pound; game birds, dressed, 
30 per centum ad valorem. 

Free List 

Eggs of poultry, birds, fish, and insects (except fish roe preserved for 
good purposes) : Provided, however. That the importation of eggs of 
game birds or eggs not used for food, except specimens for scientific col- 
lections, is prohibited: Provided further. That the importation of eggs 
of game birds for purposes of propagation is hereby authorized, under 
rules and regulations to be prescribed by the Secretary of the Treasury. 

Birds and land and water fowls not specially provided for in this 
section. 

Compare section 180 of the Conservation Law. 

The constitutionality of the Lacey Act has been 
unqualifiedly upheld in the cases of Rupert against 
United States, 181 Fed. 87, and Silz against Hesterberg, 
211 U. S. 31, as a proper exercise of the federal police 
power and a valid regulation of interstate and interna- 
tional commerce. 

The Weeks-McLean Law, socalled, making appropria- 
tions for the Department of Agriculture, approved 
March 4, 1913 (37 Stat. 847), dealing among other things 
with migratory birds, both game and insectivorous, pro- 
vides as follows : 

All wild geese, wild swans, brant, wild ducks, snipe, plover, wood- 
cock, rail, wild pigeons, and all other migratory game and insectivorous 
birds which in their northern and southern migrations pass through or 
do not remain permanently the entire year within the borders of any 
state or territory, shall hereafter be deemed to be within the custody 
and protection of the government of the United States, and shall not 
be destroyed or taken contrary to regulations hereinafter provided for. 

The Department of Agriculture is hereby authorized and directed to 
adopt suitable regulations to give effect to the previous paragraph by 
prescribing and fixing closed seasons, having due regard to the zones 
of temperature, breeding habits, and times and line of migratory flight, 
thereby enabling the department to select and designate suitable districts 



60 GrAME Law Guide 

for different portions of the country, and it shall be unlawful to shoot 
or by any device kill or seize and capture, migratory birds within the 
protection of this law during said closed seasons, and any person who 
shall violate any of the provisions or regulations of this law for the 
protection of migratory birds shall be guilty of a misdemeanor and 
shall be fined not more than $100 or imprisoned not more than ninety 
days, or both, in the discretion of the court. 

The Department of Agriculture, after the preparation of said regula- 
tions, shall cause the same to be made public, and shall allow a period 
of three months in which said regulations may be examined and con- 
sidered before final adoption, permitting, when deemed proper, public 
hearings thereon, and after final adoption shall cause the same to be 
engrossed and submitted to the President of the United. States for 
approval: Provided, however. That nothing herein contained shall be 
deemed to affect or interfere with the local laws of the states and 
territories for the protection of nonmigratory game or other birds resi- 
dent and breeding within their borders, not to prevent the states and 
territories from enacting laws and regulations to promote and render 
efficient the regulations of the Department of Agriculture provided 
under this statute. 

The above classification of birds might be construed to 
exclude any water fowl which of recent years have 
because of the prohibition of spring shooting been more 
and more inclined to breed and winter here. 

The purpose of the act seems to be to allow the states 
to give greater, but not less protection. 

Pursuant to the provisions of this act the following 
regulations have been adopted and are effective from 
August 21, 1916 : 

Regulation 1. — Definitions 
For the purposes of these regulations the following shall be con- 
sidered migratory game birds : 

(a) Anatidae or waterfowl, including brant, wild ducks, geese, and 
swans. 

Compare section 210 of the Conservation Law. 

(b) Gruidae or cranes, including little brown, sandhill, and whoop- 
ing cranes. 

Compare section 219 of the Conservation Law. 



Ownership of Game 61 

(c) Kallidae or rails, including coots, gallinules, and sora and other 
rails. 

Compare section 210 of the Conservation Law. 

(d) Limicolae or shore birds, including avocets, curlew, dowitchers, 
godwits, knots, oyster catchers, phalaropes, plover, sandpipers, snipe, 
stilts, surf birds, turnstones, willet, woodcock, and yellowlegs. 

Compare section 210 of the Conservation Law. 

(e) Columhidae or pigeons, including doves and wild pigeons. 

Compare section 219 of the Conservation Law. 

For the purposes of these regulations the following shall be considered 
migratory insectivorous birds : 

(f ) Bobolinks, catbirds, chickadees, cuckoos, flickers, flycatchers, gros- 
beaks, hummingbirds, kinglets, martins, meadowlarks, nighthawks or 
bull bats, nuthatches, orioles, robins, shrikes, swallows, swifts, tanagers, 
titmice, thrushes, vireos, warblers, waxwings, whippoorwills, wood- 
peckers, and wrens and all other perching birds which feed entirely or 
chiefly on insects. 

Compare section 219 of the Conser\'ation Law. 

Regulation 2. — Closed Season at Night 

A daily closed season on all migratory game and insectivorous birds 
shall extend from sunset to sunrise. 

Compare section 177-1 of the Conservation Law. 

Regulation 3. — Closed Season on Insectivorous Birds 
A closed season on migratory insectivorous birds shall continue 
throughout each year, except that the closed season on reedbirds or 
ricebirds in New Jersey, Pennsylvania, Delaware, Maryland, the Dis- 
trict of Columbia, Virginia, North Carolina, South Carolina and Georgia 
shall commence November 1 and end August 31, next following, both 
dates inclusive : Provided, That nothing in this or any other of these 
regulations shall be construed to prevent the issue of permits for collect- 
ing birds for scientific purposes in accordance with the laws and regula- 
tions in force in the respective states and territories and the District of 
Columbia. 

Regulation 4. — Closed Seasons on Certain Game Birds 

A closed season shall continue until September 1, 1918, on the follow- 
ing migratory game birds: Band-tailed pigeons, little brown, sandhill, 
and whooping cranes, wood ducks, swans, curlew, willet, and all shore 



62 GrAME Law Guide 

birds except the black-breasted and golden plover, Wilson snipe or jack- 
snipe, woodcock, and the greater and lesser yellowlegs. 

Compare sections 211 and 216 of the Conservation Law. 

A closed season shall also continue until September 1, 1918, on rails 
in California and Vermont and until October 1, 1918 on woodcock in 
Illinois, Kentucky and Missouri and until September 1, 1918 on black- 
breasted and golden plover and greater and lesser yellowlegs in Cali- 
fornia and Utah. 

Regui/Ation 5. — Zones 

The following zones for the protection of migratory game and insec- 
tivorous birds are hereby established. 

Zone No. 1, the breeding zone comprising the States of Maine, New 
Hampshire, Vermont, Massachusetts, Rhode Island, Connecticut, New 
York, New Jersey, Pennsylvania, Ohio, Indiana, Illinois, Kentucky, 
West Virginia, Michigan, Wisconsin, Minnesota, Iowa, North Dakota, 
South Dakota, Nebraska, Kansas, Missouri, Colorado, Wyoming, Mon- 
tana, Idaho, Utah, Nevada, Oregon, and Washington — 31 states. 

Zone No. 2, the wintering zone comprising the States of Delaware, 
Maryland, District of Columbia, Virginia, North Carolina, South Caro- 
lina, Georgia, Florida, Alabama, Mississippi, Tennessee, Arkansas, 
Louisiana, Texas, Oklahoma, New Mexico, Arizona, and California — 17 
states and the District of Columbia. 

ReguliAtion 6. — Construction 

For the purposes of regulations 7 and 8 each period of time therein 
prescribed as a closed season shall be construed to include the first and 
last day thereof. 

Compare section 380, subd. 4, of the Conservation Law. 

Regulation 7. — Closed Seasons in Zone No. 1 

Waterfowl, Coots and Gallinules. — The closed seasons on waterfowl, 
coots and gallinules in Zone one shall be as follows : 

In Maine, New Hampshire, Vermont, Massachusetts, New York 
(except Long Island), Ohio, Michigan, Indiana, Kentucky, West 
Virginia, Illinois, Iowa, Kansas, Nebraska, and Missouri the closed 
season shall be between January 1, and September 15 next following; 

Compare sections 211, 212 and 213 of the Conservation Law. 

In Wisconsin, Minnesota, North Dakota, South Dakota, Montana, 
Idaho, Wyoming, and Colorado the closed season shall be between 
December 21 and September 6 next following ; and 



Ownership of Gtame 63 

In Rhode Island, Connecticut, Long Island, New Jersey, Pennsyl- 
vania, Washington, Oregon, Utah, and Nevada the closed season shall 
be between January 16 and September 30 next following. 

Rails other than Coots and Gallinules. — The closed season on sora 

and other rails, excluding coots and gallinules, in Zone one shall be 

between December 1 and August 31 next following, except as follows : 

Exception : In Vermont the closed season shall continue until 

September 1 1918. 
Compare section 213 of the Conservation Law. 

Black-breasted and golden plover and greater and lesser yellowlegs. — 
The closed seasons on black-breasted and golden plover and greater 
and lesser yellowlegs in Zone one shall be as follows: 

In Maine, New Hampshire, Massachusetts, Rhode Island, Connecti- 
cut, New York, and New Jersey the closed season shall be between 
December 1 and August 15 next following: 

Compare sections 216 and 217 of the Conservation Law. 

In Vermont, Pennsylvania, Ohio, West Virginia, Kentucky, Indiana, 
Michigan, Illinois, Iowa, Missouri, Kansas, Nebraska, Colorado, and 
Nevada the closed season shall be between December 16 and August 31 
next following; 

In Wisconsin, Minnesota, North Dakota, South Dakota, Montana, 
Idaho, and Wyoming the closed season shall be between December 21 
and September 6 next following; 

In Oregon and Washington the closed season shall be between Decem- 
ber 16 and September 30 next following; and 

In Utah the closed season shall continue until September 1, 1918. 

Jacksnipe. — The closed seasons on jacksnipe or Wilson snipe in 
Zone one shall be as follows: 

In Maine, New Hampshire, Vermont, Massachusetts, New York, 
(except Long Island), Ohio, West Virginia, Kentucky, Indiana, Michi- 
gan, Illinois, Iowa, Missouri, Kansas, and Nebraska the closed season 
shall be between January 1 and September 15 next following; 

Compare sections 216 and 217 of the Conservation Law. 

In Rhode Island, Connecticut, Long Island, New Jersey, Pennsyl- 
vania, Washington, Oregon, Nevada, and Utah the -closed season shall 
be between January 16 and September 30 next following; and 

In Wisconsin, Minnesota, North Dakota, South Dakota, Montana, 
Idaho, Wyoming, and Colorado the closed season shall be between 
December 21 and September 6 next following. 

Woodcock. — The closed season on woodcock in Zone one shall be 



64 Game Law Guide 

between December 1 and September 30 next following, except as 
follows : 

Exceptions: In Illinois, Kentucky, and Missouri the closed 
season shall continue until October 1, 1918. 

Compare sections 216 and 217 of the Conservation Law. 

Regulation 8. — Closed Season in Zone No. 2 
Waterfowl, Coots and Gallinules. — The closed seasons on waterfowl, 
coots and gallinules in Zone two shall be as follows : 

In Delaware, Maryland, District of Columbia, Virginia, North Caro- 
lina, South Carolina, Georgia, Florida, Tennessee, Alabama, Mississippi, 
Arkansas, and Louisiana the closed season shall be between February 1 
and October 31 next following; and 

In Oklahoma, Texas, New Mexico, Arizona, and California the closed 
season shall be between February 1 and October 15 next following. 

Rails, other than Coots and Gallinules. — The closed season on sera 
and other rails, excluding coots and gallinules, in Zone two shall be 
between December 1 and August 31 next following, except as follows : 

Exceptions : In Louisiana the closed season shall be between 

February 1 and October 31; and 
In California the closed season shall continue until Septem- 
ber 1, 1918. 

Black-hreasied and golden plover and greater and lesser yellowlegs. — 
The closed seasons on black-breasted and golden plover and greater and 
lesser yellowlegs in Zone two shall be as follows: 

In Delaware, Maryland, District of Columbia, and Virginia the closed 
season shall be between December 1 and August 15 next following; 

In South Carolina, Georgia, Florida, Alabama, Mississippi, Louisiana, 
and Texas the closed season shall be between February 1 and October 31 
next following; 

In North Carolina, Tennessee, Arkansas, Oklahoma, New Mexico, and 
Arizona the closed season shall be between December 16 and August 31 
next following; and 

In California the closed season shall continue until September 1, 1918. 

Jacksnipe. — The closed seasons on jacksnipe or Wilson snipe in 
Zone two shall be as follows : 

In Delaware, Maryland, District of Columbia, Virginia, North Caro- 
lina, South Carolina, Georgia, Florida, Tennessee, Alabama, Mississippi, 
Arkansas, and Louisiana the closed season shall be between February 1 
and October 31 next following; and 

In Oklahoma, Texas, New Mexico, Arizona, and California the closed 
season shall be between February 1 and October 15 next following. 

Woodcock. — The closed season on woodcock in Zone two shall be 
between Januarj' 1 and October 31 next following. 



Ownership of Game 65 

Regulation 9. — Hearings 
Persons recommending changes in the regulations or desiring to sub- 
mit evidence in person or by attorney as to the necessity for such 
changes should make application to the Secretary of Agriculture. 
Hearings will be arranged and due notice thereof given by publication 
or otherwise as may be deemed appropriate. Persons recommending 
changes should be prepared to show the necessity for such action and 
to submit evidence other than that based on reasons of personal con- 
venience or a desire to kill game during a longer open season. 

REPEAIi 

Except in respect to offenses theretofore committed, on and after the 
date of the approval by the President of the foregoing regulations such 
regulations shall supersede the regulations for the protection of migra- 
tory birds approved and proclaimed October first, one thousand nine 
hundred and thirteen (38 Stat., 1960), as amended by regulations for 
the protection of migratory birds approved and proclaimed August 
thirty-first, one thousand nine hundred and fourteen (38 Stat., 2024), 
as further amended by regulations for the protection of migratory 
birds approved and proclaimed October first, one thousand nine hun- 
dred and fourteen (38 Stat., 2032). 

While the Lacey Act has been uniformly sustained as 
constitutional, the Weeks-McLean Law and the Regula- 
tions adopted by the Department of Agriculture have 
not fared as well. 

There have been numerous prosecutions for violations 
of these regulations resulting in conviction and the 
imposition of the appropriate penalties. 

In 1914, in an unreported South Dakota case (United 
States V. Shaw), the migratory bird law was upheld, but 
in the case of United States against Shauver, 214 Federal 
Reporter 154 (1914), an Arkansas case, the law was 
declared unconstitutional. 

The defendant was indicted for a violation committed 
in the form of ' ' spring shooting ' ' of water fowl. A 
demurrer was interposed and on the argument Judge 
Trieber rendered a decision of which the following is a 
synopsis : 

^ ' A federal court will declare an act of Congress uncon- 
stitutional only when the question is practicallv free 
5 



66 Game Law Guide 

from real doubt and the mere fact that the statute goes 
to the verge of the constitutional power is not enough, 
but it must appear clearly that it is beyond that power 
before a court will declare it void." 

'' The states retain the police power which they as 
sovereign nations possessed prior to the adoption of the 
national constitution so far as such powers pertain to the 
internal affairs of the states." 

'' The United States possesses power analogous to the 
police power of the states which every sovereign nation 
possesses as to its own property and power to carrj^ into 
effect powers conferred on it by the constitution. ' ' 

*' The act of March 4, 1913, cli. 145, 37 Stat. 847, pro- 
tecting migratory birds and game cannot be sustained as 
an exercise of the implied powers of the national govern- 
ment though it is impossible for any state to enact laws 
for the protection of migratory wild game and only the 
national government can do it with any fair degree of 
success. ' ' 

'' Migratory birds are not when on their usual migra- 
tion, the property of the U. S. within Const. Art. 4, 
Section 3, Sub. 2 empowering congress to adopt rules 
respecting the territory or other property of the United 
States, but they are the property of the states in their 
sovereign capacity as the representative and for the 
benefit of all the people in common and Act March 4, 1913, 
protecting migratory birds cannot be sustained as an 
exercise by congress of the right to adopt regulations for 
its property." 

'' The act is invalid because not authorized expressly 
or by necessary implication by the Constitution." 

" The act cannot be sustained as an exercise by Con- 
gress of the power to regulate interstate commerce. ' ' 

Among the many authorities cited in the opinion writ- 
ten in the case are Rupert against United State and Silz 
against Hesterberg, the two cases in which the constitu- 
tionality of the Lacey Act has been upheld. 



Ownership of Game 67 

The Attorney-Greneral of the State of New York in 
1913 along kindred, lines and upon some of the same 
authorities rendered an opinion to the effect that the 
federal migratory bird law was unconstitutional. 

See Attorney-General Reports, 1913, vol. II, page 645. 

The Shauver case was removed to the Supreme Court 
of the United States on the government's writ of error 
and was argued before such of the judges as were then 
sitting on October 16, 1915. ■ On February 28, 1916, the 
case was, by order of the court, restored to the docket 
for re-argument and no decision has yet been reached. 

One of the interesting points pressed before the 
Supreme Court is that if Congress has the power and the 
right to distribute seeds and disseminate the means of 
exterminating insect pests, the protection of migratory 
birds is but a corollary of this authority. 

If the law and the regulations are invalidated the 
defects unless insurmountable will be met by amend- 
ments or original legislation. In the event that the objec- 
tions found, if any, are absolutely fatal, pending cases 
and those in which the time to appeal has not expired will 
be abandoned and all others will become closed incidents 
and the only recourse will be the amendment of the U. S. 
Constitution unless the recent treaty entered into 
between Canada and the United States disposes of the 
constitutional question. 

Hopeful of the outcome on this same old issue of state 
rights, the devotees of the law — and in that class are 
included all real sportsmen — have been looking forward 
to the establishment and enforcement of a federal season 
limit on all migratory game birds and regardless of the 
the decision in the Shauver case, the successful negotia- 
tion of a treaty with the Canadian government for a 
thorough co-operation along these lines. This latter pro- 
ject has proved not over difficult for the statute of the 
province of Ontario has for some time provided that the 



68 GrAME Law Guide 

Lieutenant-Governor in council might make regulations 
prohibiting the hunting, shooting or sale of any migra- 
tory game which he may deem to be at any time in danger 
of extinction, for the same period and in the same manner 
as the same is at any time forbidden in any two or more 
of the United States of America, one of such states 
being New York, Pennsylvania or Michigan. 

See part II, section 8, subdivision 6 of the Ontario Game and 
Fishery Laws. 

Such a treaty has but recently become an assured fact 
and will, it is claimed, largely dispose of all questions of 
state rights. It is worth noting at this point that the 
federal law provides for no civil penalty, the punishment 
for an offense regardless of its extent or enormity being 
a fine or imprisoimient or both. It differs from the CON- 
SERVATION LAW also in that there is no distinction 
between a violation which involves one bird and one which 
involves a number of them and in that it does not cover 
attempts or lesser acts and does not restrict posses- 
sion or prescribe a limit. 

The federal law is enforced by indictment only and 
the limitation within which prosecution may be com- 
menced is three years from the time of the commission 
of the offense. 

See U. S. Statutes, title 13, chapter 19, section 1044. 
Compare chapter XVII on Procedure. 

The federal regulations are at present enforced by 
federal wardens in the different states. 

State Control 

In discussing this important and fascinating phase of 
the law, three distinct propositions must be borne in 
mind among which clear and clean cut differentiations 
should be made : 



OwNEBSHip OF Game 69 

First. — The socalled state ownership of wild animals 
or the right, title and interest of the state in and to them 
as against all individuals, whether owners of land or 
otherwise — subject of course to federal jurisdiction over 
migratory birds. 

Second. — The ride of the chase involving property 
rights in and to wild animals as among or between indi- 
viduals when the rights and claims of the State are 
ivaived in favor of the lawfid taker who does not invade 
the legal rights of others. 

Third. — The peculiar property rights in and to wild 
animals vested in the owner of the soil on which they are 
found, subject to State regulation. 

The second and third features of this question will be 
discussed in Chapter XVIII. 

With these three principles kept ever to the fore, it is 
believed that the apparent conflicts among such cases as 
People V. Doxtater, 75 Hun, 472 ; Rockefeller v. Lamora, 
85 A. D. 254; Matter of Deposit, 131 A. D. 403; Pierson 
V. Post, 3 Caines, 175, and the English authority Blades 
V. Higgs, 11 H. L. Cases, 621, can be brought to recon- 
ciliation. 

It may be stated by way of preface that the original 
and ultimate absolute title to all property whether real 
or personal is in the sovereign state. 

2 Blackstone, 409. 

New York State Constitution, article I, section 10. 

Johnson v. Spencer, 107 N. Y. 185. 

While in some particulars the principles of property as 
applicable to wild animals may properly be said to taste 
of those which govern real estate, yet in the main, the 
philosophy pertaining to property of a personal char- 
acter controls in so far as the peculiar nature of animals 
as property allows. 

Under the earlier conditions of mankind, the human 
family had in common a dominion over and consequently 



70 GrAME Law Guide 

a quasi property in all the unreclaimed animals of the 
earth. 

2 Blackstone, 403. 

Notwithstanding the fact that the right to take that 
species of property known as fish and game was a nat- 
ural right originally practically unrestricted by law, wild 
animals have always been in a sense deemed the property 
of the sovereign and from remote times the right and 
power of the State to regulate and control their capture 
has been recognized and variously asserted. 

2 Blackstone, 403. 
Justinian Book 2, 

At one time in ancient Greece, Solon the law giver, 
observing that the Athenians devoted themselves to the 
chase, to the neglect and detriment of the arts, forbade 
the hunting and killing of game. 

Geer v. Connecticut, 161 U. S. 519. 

Under the Civil Law of Rome wild animals were con- 
sidered the property of the state and under the COM- 
MON LAW of England they were deemed the property 
of the Crown. 

By the early English common law whales and sturgeon 
were deemed ' ' royal fish ' ' and if thrown on shore 
became instanter, crown possessions. 

1 Blackstone, 290. 

Originally under the common law this socalled title to 
wild animals seems to have been regarded as vested in 
the sovereign as a personal prerogative and traces of this 
idea are still discoverable in the provisions of the stat- 
utes of the province of New Brunswick on fishery leases 
and those of Ontario on fishing in navigable waters. 

However on the grant by King John in 1215 of 
MAGNA CARTA and the CHARTER OF THE FOR- 



Ownership of Game 71 

EST in 1225 by Henry III, the rights of the sovereign in 
unreclaimed wild animals were limited and the rule of 
the ROMxlN LAW restricting the sovereign power to a 
control and regulation of their taking became the COM- 
MON LAW of England. 

2 Blackstone, 414. 

State V. Mallory, 67 L. R. A. 773. 

Geer v. Connecticut, 161 U. S. 519. 

The rule of the CIVIL LAW recognizing this qualified 
title of the sovereign in wild animals having been to all 
intents and purposes adopted by the English COMMON 
LAW, became the rule in the United States. At any rate, 
the civil law states followed the principle of the civil law 
and the common laiv states followed that of the common 
law. The uniform gist of all authorities appears to be 
that the general title to wild animals within its borders, 
as far as they are capable of ownership is in the state not 
as a technical proprietor, but in its collective sovereign 
capacity as the representative and for the benefit of all 
its citizens in common. 

For this reason it has been said that neither fish, birds 
or quadrupeds {ferae naturae) belong to the state in the 
sense that the state can without express provision of law 
sell them or pursue them into other states to capture 
and recover them. 

Rossmiller v State, 114 Wisconsin, 169. 
Roberts v. Fullerton, 117 Wisconsin, 222. 
Compare sections 154, 155, 156, 157, 158. 

Wild animals have also been entitled wards of which 
the State is guardian. They have been said to be a 
property in timst for the benefit of all the people. 

A cloud of cases might be cited on these propositions, 
but a few pivotal authorities in addition to those already 
quoted will suffice : 

Ex parte Maier, 37 Pacific Reports, 402. 
Phelps V. Raeey, 60 N. Y. 10. 



72 G-AME Law Guide 

Commonwealth v Papsone, 232 U. S. 138. 
Magner v. People, 97 Illinois, 320. 
Garcia v. Gunn, 119 California, 315. 
People V. Bootman, 180 N. Y. 7. 
State V. Nergaard, 124 Wisconsin 414. 

As the immense value of this wild wealth has become 
more and more appreciated from the standpoints of the 
maintained balances of nature, the beneficent work of 
insectivorous birds and the importance of the food and 
fur supply which it affords, the taking of such animals 
has come to be considered more as a privilege than an 
inherent right the world over and this favor rests with 
the government to extend, regulate and control. 

These animals become the subjects of private owner- 
ship only so far as the people elect to make them so and 
the Legislature usually prescribes the point or limit 
where public proprietorship ends and that of the indi- 
vidual commences. 

Kellogg V. King, 114 California, 378. 

It is without doubt due' to the nice nature of this prop- 
erty and the absence of a technical possession of them 
while in a state of nature that the taking of game ani- 
mals in violation of the CONSERVATION LAW has 
not yet been technically declared to be what to all intents 
and purposes it is ; to wit, a larceny. 

This right is not such a proprietary one as carries 
with it any liability against the State for depredations 
done by wild animals although the State could if it saw 
fit become responsible for all such damage and this 
answerability the states of Massachusetts, New Hamp- 
shire and Vermont have largely assumed as to the 
havoc done by deer. 

The protection and conservation of this vast property 
involves not only these peculiar rights of ownership, but 
also the exercise of that almost indefinably broad author- 



Ownership of Game 73 

ity of the State exerted on behalf of all which best sub- 
serves the public welfare, known as the police power. 

See decisions cited above. 

Siierlock v. Ailing, 93 U. S. 99. 

Cummiiigs v. People, 211 Illinois, 393. 

M'cCready v. Virginia, 94 U. S. 395. 

Commonwealth v. MeComb, 227 Pa. 377. 

Lawton v. Steele, 152 U. S. 133. 

Plumley v. Massachusetts, 155 U. S. 461. 

People' V. Hesterberg, 219 U. S. 31 (184 N. Y. 126). 

The extent and limitation of this police power have 
been the subject of endless discussions in all the courts. 
It is uniformly conceded to include everything essential 
to public safety, health, morals and general welfare and 
to justify the destruction or abatement by summary 
methods of whatever may be regarded as a public nuis- 
ance. Wherever the public interest demands its exer- 
cise, a large discretion is necessarily vested in the Legis- 
lature to determine not only what the interests of the 
public require, but what measures are necessary for 
their adequate protection. 

See Lawton v. Steele. 

The test appears to be whether an enactment has rela- 
tion to the public welfare and practically all reasonable 
legislation legitimately aimed at the protection of wild 
animal life has been upheld as proper exercise of this 
wide power. 

The authority of the State not only extends to wild 
animals in a state of nature^ but follows them and for 
certain purposes applies after their legal capture. 

Matter of Blardone, 115 S. W. 839. 

The scope of this right and power covers such matters 
as licenses, open and close season, taking and manner 
of taking, bag limits, possession during and after open 
season, transportation, exportation, importation, sale, 



74 GrAME Law Guide 

confiscation of paraphernalia of all kinds and all of the 
many restrictive measures involved in the scheme of 
game conservation. 

The right of fishing and hunting in waters lying 
between two states is usually regulated and controlled 
by treaty, but in the absence of snch treaty, the right to 
fish and hunt on such waters to the middle thereof, lies 
within the control of the respective states. 
19 Cyc. 1005. 

By virtue of the foregoing principles and in terms 
corresponding largely to the text of the statutes of all 
the states, the Conservation Law in Section 175 declares : 

The ownership of, and the title to all fish, birds, and quadrupeds 
in the state of New York, not held by private ownership, legally 
acquired, is hereby declared to be in the state. No fish, birds or 
quadrupeds shall be caught, taken or killed in any manner or at 
any time or had in possession except the person so catching, taking 
or killing or having the same in possession shall consent that the 
title to such fish, birds and quadrupeds shall be and remain in the 
state of New York for the purpose of regulating and controlling 
the use and disposition of the same after such catching, taking or 
killing, except that the title to such fish, birds or quadrupeds 
legally taken shall vest in the person so taking or possessing the 
same, subject to the restrictions and provisions of law. 

This declaration covers eggs of birds and spawn of 
fish. 

The language in which the declaration of these princi- 
ples is clothed varies more or less in the statutes of the 
various states, and it may be of interest to compare, for 
instance, Section 1 of the Oregon G-ame Code which reads 
as follows : 

" No person shall at any time or in any manner acquire any prop- 
erty in, or subject to his dominion or control, any of the wild game 
animals, fur-bearing animals, game birds, non-game birds or game fish, 
or any part thereof, of the state of Oregon, but they shall always and 
under all circumstances be and remain the property of the state, except 
that by killing, catching or taking the same in the manner and for the 



Ownership of Game 75 

purpose herein authorized and during the period not herein prohibited 
the same may be used by any person at the time, and in tlie manner, 
and for the purpose herein expressly provided. Any person hunting or 
trapping for or having in possession any game animals, fur-bearing 
animals, game birds, non-game birds, or game fish at any time in any 
manner shall be deemed to consent that the title shall be and remain 
in the state for the purpose of regulating the use and disposition of 
the same, and such possession shall be deemed the consent of such per- 
son as aforesaid, whether said animals, birds or fish were taken within 
or without the state." 

It is evident that these legislative declarations of 
ownership by the state of wild animals in their wild or 
natural state as well as after capture added nothing vital 
to the law as it existed before such provisions were 
enacted. As expressed in Section 382 they represent 
a restatement in statutory form of the existing law. 

Section 175 of course excludes from its operation 
domestic animals {domitae naturae). 

It also eliminates from its application animals once 
wild which have become domesticated or tamed (man- 
suetae naturae). This opens up a wide field of discus- 
sion, for animals once wild may be said to be presumed 
to remain so until they have lost the spark of liberty and 
developed what is known as animus revertendi (the dis- 
position if freed to remain at or return home). If they 
have not acquired this characteristic and escape they 
would unless recovered and identified become and be 
claimed as wild animals. 

The statute does not apply to wild animals {ferae 
naturae) held in private ownership legally acquired. 
This classification includes such animals so held as of 
the time when the act took effect (1912) and those subse- 
quently so acquired. It w^ould not exclude from the 
operation of the law wild animals taken in close season 
prior to 1912 nor to those taken during the open season 
and possessed after its close witJiout a license. But it is 
doubtful if the commission would now enter into any 



76 Game Law Guide 

dispute as to the ownership of such animals possessed 
prior to April 15, 1912. 

See chapter XVIII; sections 190, 372, 200, 159, etc. 

If these enumerated excepted classes were not removed 
from the operation of the law the statute would doubt- 
less be held unconstitutional as being in impairment of 
contractual rights and as taking private property with- 
out due process of law and just compensation. 

United States Constitution, article I, section 10. 

United States Constitution, amendment V. 

New York State Constitution, article I, sections 6 and 7. 

See the discussion of these animals in chapter XVIII. 

See People v. Cohen, 91 A. D. 89. 

The terms of the Wisconsin statute include all wild 
animals or creatures endowed with sensation and the 
power of voluntary motion. Section 175, however, 
does not at present expressly apply to such wild animals 
as are neither fish, flesh nor fowl, although frogs are 
listed as fish (Section 257) and turtles as quadrupeds 
(Section 202). 

See Section 185 on hunting licenses where a gun is used. 

Bees for instance as to which there is abundance of 
interesting law, are not covered by the statute nor are 
insects and reptiles generally. 
See chapter XVIII. 

The declaration particularly emphasizes quadrupeds, 
birds and fish and to such wild animals no one can 
acquire title especially as against the State or any per- 
son acting in good faith on its behalf except in strict 
compliance with the law. 

See James v. Wood, 82 Me. 173. 



CHAPTER IV 



GENERAL POWERS AND DUTIES OF THE 
COMMISSION AS TO FISH AND GAME 

Pursuant to the principles discussed in Chapter III, 
the State through the Legislature has prescribed the 
powers and duties of the Commission on its behalf as to 
fish and game in Section 150 : 

The commission shall have charge, control and management of 
the propagation and distribution of food and game fish, shell-fish, 
Crustacea, and game. It shall have the conduct and control of all 
hatching and biological stations and game farms owned, operated 
or hereafter acquired by the state. The commission shall have 
charge of the enforcement of all laws for the protection of fish, 
shell-fish, Crustacea, birds, and quadrupeds ; lands under water which 
have been or shall be designated, surveyed and mapped out pur- 
suant to law, as oyster beds or shell-fish grounds, and power to 
grant leases of land under water for shell-fish culture according to 
law, to make rules regulating the inspection and examination of 
shell-fish, shell-fish grounds and the buildings used for storage; 
handling and shipments thereof; the floating of shell-fish; and the 
removal of shell-fish from beds which are in an unsanitary con- 
dition and their deposit upon unpolluted grounds; power to make 
rules increasing the size of mesh of nets, regulating the transporta- 
tion, importation, and exportation of game, fish, shell-fish and 
Crustacea, and the taking of fish in any manner, other than angling, 
except as to migatory fish of the sea within the limits of the marine 
district; the granting of licenses where the same are prescribed hy 
law, the fixing of fees therefor and the terms thereof. 

See Section 59, subdivision 1, b. 

See Remington v. State, 116 A. D. 522. 

See Public Lands Law, article VI. 

The State fish hatcheries and the fish which they at 
present distribute are : 

ADIRONDACK, Saranac Inn Station — Brook Trout, 
Rainbow Trout, Lake Trout, Whitefish and Frostfish. 

[77] 



78 GrAME Law Guide 

BATH, Bath — Brook Trout, Brown Trout, Rainbow 
Trout and Lake Trout. 

CALEDONL^., Caledonia — Brook Trout, Brown 
Trout, Rainbow Trout, Lake Trout, Lake Herring, 
Pikeperch and Maskalonge. 

CHAUTAUQUA, Bemis Point — Brook Trout, Lake 
Trout, Maskalonge, Lake Herring and Black Bass. 

COLD SPRING HARBOR, Cold Spring Harbor — 
Brook Trout, Brown Trout, Rainbow Trout, Pikeperch, 
Smelt, Tomcod, Flatfish, Sea Bass, Scup, Whitefish, 
Blackfish, Blue Crab and Lobster. 

DELAWARE, Margaretville — Brook Trout, Brown 
Trout and Rainbow Trout. 

FULTON CHAIN, Old Forge — Brook Trout, Lake 
Trout, Whitefish, Frostfish and Land Locked Salmon. 

LINLITHGO, Linlithgo — Brook Trout, Brown Trout, 
Rainbow Trout, Shad, Pikeperch, Lake Herring, River 
Herring, Black Bass and Yellow Perch. 

ONEIDA, Constantia — Pikeperch, TuUibee, White- 
fish, Lake Herring, Black Bass and Yellow Perch. 

ST. LAWRENCE, Ogdensburg — Black Bass and 
Pikeperch. 

WARRENSBURG, Warrensburg — Brook Trout. 

By Chapter 632 of the Laws of 1916, the establishment 
of a hatchery at Dunkirk, Chautauqua county, is author- 
ized for the purpose of propagating for the waters of 
Lake Erie and other waters of the State, white fish, lake 
trout, herring, blue pike and other fish. 

The State game farms, at present devoted to the propa- 
gation of pheasants only, are : 

SHERBURNE — Chenango County. 

MIDDLE ISLAND — Suffolk County. 

BROWNVILLE— Jefferson County. 

Where a license is required by any section of the law 
the terms of its grant may be regulated by the Commis- 
sion, and it seems that the Commission may by rule 



General Powers and Duties of Commission 79 

require a license for any form of fishing except angling 
— barring the catching of migratory fish of the sea 
within the limits of the marine district — and prescribe 
the terms and conditions on which it may be granted. 

See Rules and Regulations noted under different sections. 

It is essential to observe at this point the force of 
Eules 34 and 35 as to the amendment and abrogation 
of rules, the issuance of licenses and the construction 
thereof : 

The conservation commission reserves the right to alter, amend, 
or abrogate any or all of its rules and regulations, and may adopt 
new ones at any time as the commission may deem expedient. Noth- 
ing contained in any of these rules and regulations shall be con- 
strued as compelling the issuing of a license to any person nor to 
prevent the revoking of such license at any time. 

No license or permit issued by the commission under Article 5 
of the Conservation Law shall be deemed to authorize the licensee, 
or person to whom such a permit is issued, to trespass upon any 
private lands, or to do any injury thereto, or to exclusively occupy 
any land owned by the state, including lands under water, or to 
exclusively use any public waters of the state. 

These rules as far as revocation is concerned do not 
apply to hunting licenses. 

While it was held in Lewis v. State, 96 N. Y. 71, that 
the State was not liable for the negligence or misfea- 
sance of its agents in those cases where by legislative 
enactment, it has not assumed such liability, it was stated 
in Remington v. State, 116 A. D. 522, that in view of the 
duty of the Commission to propagate and distribute 
food and game fish, it might be liable for trespasses com- 
mitted for those purposes. 

Compare section 59, subdivision 1 b. 

The fish culturist appointed by the Commission has 
charge under its direction of the culture of fish and 
shell-fish. In addition to his salary of $4,000 per annum, 



80 GrAME Law Guide 

he is reimbursed his actual and necessary traveling 
expenses incurred in the performance of his duty. 
See Section 151. 

Over and above the general enactments protecting fish 
and game, provision for additional protection by order 
of the Commission on a basis of wide discretion is made 
in Section 152: 

1. Ten or more citizens of the state may file with the commission 
a petition in writing requesting it to give to any species of p,sh 
other than migratory food fish of the sea including fish or game 
birds or quadrupeds , protection or additional protection to that 
afforded by the provisions of this article. Such petition shall state 
the grounds upon which such protection is considered necessary, 
and shall be signed by the petitioners who shall attach their 
addresses. 

This applies to all fish except migratory food fish of 
the sea. 

The Commission could order protection for fish, birds 
or quadrupeds not now protected. 

No verification of the petition seems to be required, 
but it would add force and form. 

2. If the commission sliall after hearing petitioner entertain the 
petition, it shall hold a ptuhlic hearing in the locality or county to 
be affected upon the allegations of such petition at such time and 
place within the locality or county affected as the coromission may 
determine within twenty days from the filing thereof. At least ten 
days prior to such hearing notice thereof, stating the time and 
place at which such hearing shall be held, shall be advertised in a 
newspaper to be selected by the commission and published in the 
counties or county to be affected by such additional or other pro- 
tection or if less than a whole county, in or near the locality which 
may be affected. Such notice shall contain a brief statement of the 
grounds upon which such application is made, and a copy thereof 
shall be mailed to each jj^titioner at the address given in such 
petition at least ten days before such hearing. 



General Powers and Duties of Commission 81 

No minimum acreage of land or length or size of 
stream or body of water seems to be fixed. 

3. If upon such hearing the commission shall determine that such 
species of fish or game, by reason of disease, danger of extermina- 
tion or from any other cause or reason, requires such additional or 
other protection, in any locality or throughout the state, the com- 
mission shall have power by order to prohibit or regulate during 
the open season therefor, the taking of such species of fish or game. 
Such prohibition or regulation may be made general throughout 
the state or confined to a particular part or district thereof and 
the order shall fix the day when the same shall take effect and the 
commission shall sign and enter the order in its minute book. 

4. At least thirty days before the day fixed for such order to 
take effect, copies of the same certified by the secretary to the 
commission shall be filed in the office of the clerk of each county 
containing a district or any part of a district to which the pro- 
hibition or regulation applies. At least thirty days before such 
order shall take effect the commission shall cause the same to be 
published in a newspaper in each county wherein such prohibition 
or regulation shall apply. 

The Additional Orders Now in Force Are: 



Species 



Pheasants 

Pheasants 

Pheasants 

Pheasants 

Pheasants 

Pheasants 

Pheasants 

Pheasants 

Pheasants 

Pheasants 

Pheasants 

Pheasants 

Pheasants 

Pheasants 

Pheasants 

Pheasants 

Pheasants 

Cotton tail rabbits 

Cotton tail rabbits 
and varying hares 

Varying hares 

Black bass 

Black 'bass 

Small mouth black 
bass. 

Black bass 

Bass, pike, perch, 
pickerel and bull- 
heads. 

Pike and pike-perch. 

6 



County 



Herkimer 

Otsego 

Delaware 

Oneida 

Montgomery 

Lewis 

Warren 

St. Lawrence 

Franklin 

Clinton 

Essex 

Allegany 

Tioga 

Cattaraugus 

Chautauqua 

Erie 

Sullivan 

Richmond 

Rockland 

Cattaraugus 

Lake Erie and Niagara river .... 

All waters in the towns of Chester 
Horicon and Johnsburg, War- 
ren county. 

Lake Bonaparte, Lewis county.. . 

Schroon and Paradox lakes 

Grass Lake, towns of Alexandria 
and Rossie, counties of St 
Lawrence and Jefferson. 

Butterfield lake, Jefferson county 



Period 



Two years 

Two years 

Two years 

Two years 

Two years 

Two years 

Two years 

Two years 

Two years 

Two years 

Two years 

Two years 

Two years 

Two years 

Two years 

Two years 

Two years 

Oct. 1 to Nov. 14 and 

Jan. 1 to 31. 
Oct. 1 to 31 and Jan. 1 

to 31. 

Two years 

June 16 to June 30 
June 16 to July 15. 



June 16 to June 30. . . 

June 16 to July 15. . . 
Taking through ice 
prohibited. 

Tip-ups prohibited. 



Expires 



Oct. 
Oct. 
Oct. 
Oct. 
Oct. 
Oct. 
Oct. 
Oct. 
Oct. 
Oct. 
Oct. 



1, 1918 
1. 1918 
1, 1917 
1, 1918 
1, 1918 
1, 1918 
1, 1918 
1, 1918 
1, 1918 
1, 1917 
1,1918 



Oct. 21, 1917 
Oct. 1, 1917 



Oct. 
Oct. 
Oct. 
Oct. 



1, 1917 
1, 1917 
1,1918 
1, 1918 



No date. 

Oct. 1, 1918 

Oct. 1, 1918 
No date. 
June 15, 1917 



June 16, 1918 



June 15, 1917 
Jan. 1, 1917 



Jan. 1, 1917 



82 



CrAME Law Guide 



The Additional Orders Now in Force Abe — Continued 



Species 



County 



Period 



Expires 



Ruffed grouse 

Black, gray and fox 
squirrels. 

Pike, pickerel and 
perch. 

Pickerel and pike- 
perch. 

Pike, great northern 
pike and pickerel. 



Pike-perch 
pickerel. 



and 



Tip-ups .... 
Brook trout. 



Brook trout. 



Pheasants . 
Pheasants . 



Genesee . 



Genesee . 

Clear lake, town of Alexandria, 

Jefferson county. 
Goodyear lake, town of Milford, 

Otsego county. 
Town of Theresa, Jefferson 

county, Red lake, Hyde lake, 

Moon lake, Muscalonge lake. 



"Waters of Saratoga lake extend- 
ing to Bryant's Bridge and 
waters of Lake Lonely, Sara- 
toga county. 



Dutchess county 

Otter creek, Dorsey creek. Skate 
creek. High Rock creek, Cage 
creek. Panther creek, Wolf 
creek, Robinson river, Glasby 
creek, Cranberry lake, inlet 
above High falls, Six Mile 
creek. Chair Rock creek, Sucker 
brook. East creek and Brandy 
creek, together with the tribu 
taries thereto in the towns of 
Fine. Clifton and Colton in the 
county of St. Lawrence; and 
Cranberry lake inlet below High 
falls in said towns and county 

Herkimer county, town of Rus- 
sia. That the waters affected 
by this order are the waters of 
Buttermilk brook, Tainter 
brook, Wilts brook, Haughton 
brook, Bemis brook, Bingdyce 
brook. Smith brook and Mc- 
Alister brook, in the town of 
Russia, county of Herkimer. 

Putnam county 

Ulster county 



Two years Oct. 1, 1918 



Two years 

Tip-ups prohibited. . . 

Feb. 1 to Mar. 1 . . . . 

Five years; five tip- 
ups only to be op- 
erated by one per- 
son between sunrise 
and sunset. 

Pickerel not less than 
20 inches in length 
shall be taken or 
possessed. 

Three years; five tip' 
ups only to be op- 
erated by one per- 
son between 6 a. m 
and 6 p. m.. Said 
tip-ups to be 
moved from water 
between the hours 
of 6 p. M. and 6 

A. M. 

Tip-ups prohibited. . 
Four years 



Oct. 
Jan. 



1, 1918 
1, 1921 



Feb. 1, 1919 
Jan. 1, 1921 



Oct. 
Sept. 



1,1921 
1, 1920 



Two years from April April 1, 1919 
1917. 



Two years. 
Two years. 



Oct. 
Oct. 



1, 1918 
1, 1918 



Further provision is made for tlie establishment of 
fish and game closes in Section 153 : 

The commission may, on request of a majority of the town board 
of any town or a majority of the common council of any city, by 
order, prohibit or regulate the taking of birds or game on lands 
set aside, ivith the consent of the owner or owners thereof, as bird 
and game refuges for a period of not to exceed ten years. On a 
like request, when fish have been or shall be placed in waters of a 
town or of a city at the expense of the state, the commission may 



Geneeal Powers and Duties of Commission 83 

by order prohibit or regulate the taking of fish from such waters, 
for a period of not to exceed three years. At least thirty days 
before such order shall take effect, a copy of the same certified 
by the secretary to the commission shall be filed in the office of 
the clerk of the town or city in which the prohibition or regula- 
tion applies. Printed notices at least one foot square that such 
lands or streams have been closed, shall be posted along the 
boundaries of the land, or along the shores or hanks of the waters 
affected not more than fifty rods apart measured along the said 
boundaries and along said banks. 

Any person who shall violate or attempt to violate any such 
order shall be guilty of a misdemeanor, and shall, upon convic- 
tion, be subject to a fine of not to exceed one hundred dollars, or 
shall be imprisoned for not more than thirty days, or both, for 
each offense and in addition shall be liable to the penalties herein- 
after provided for taking fish, birds or quadrupeds in the close 
season. 

An affidavit of the fact of such stocking with fish or of posting 
such notices or a certification of such facts by a game protector 
when filed in the office of the commission shall be presumptive 
evidence of the facts stated therein and a copy of either when cer- 
tified by the secretary to the commission shall be competent evi- 
dence in any action or proceeding for enforcement of any of the 
provisions of this section. 

Compare section 182 as to penalties. 

Compare sections 360 to 366 on matters of posting. 

The affidavit, it seems, may be made by any person 
having knowledge of the stocking. 

In connection with the subject-matter of both Sections 
152 and 153, it has been held in the case of Vermont v. 
Theriault, 43 L. R. A. 290, that a person is not unlaw- 
fully deprived of his private rights w^here the State pro- 
hibits all fishing in his stream for a certain period of 
time. 

In establishing a fish close the consent of the owner of 
the lands does not seem to be required as in like cases in 
Vermont, but it is doubtful if the Commission would 
without a hearing and an effort to secure such consent 
establish a close thereon. This particularly Avould be 
true in a case when the stream has not been stocked with 
the consent of the owner. 



84 GrAME Law Guide 

No iniiiimum acreage of land, mileage of stream or size 
of waters is fixed. 

Bird and game closes have been established in the fol- 
lowing counties and towns : 

County Town 

Otsego Richfield Springs and Springfield 

Center. 

Essex Essex. 

Essex Essex. 

Otsego Oneonta. 

Rensselaer Berlin. 

Oneida Sangerfield. 

Tioga Owego. 

Tioga Owego. 

Essex Essex. 

Westchester New Castle. 

Onondaga Manlius. 

Chemung Big Flats. 

Genesee Bethany. 

Rensselaer Berlin. 

Chenango Including State Game Farm and 

surrounding territory. 

Matters of fishing seem preferably to be disposed of 
through protective orders. 

Compare section 366 on Game Refuges. 

Both of these sections, 152 and 153, are to be con- 
sidered with Section 12, subdivision 8, of the County Law, 
which authorizes the board of supervisors in any county 
of the State to : 

" Provide for the protection and preservation subject to the laws 
of the state of wild animals, birds, and game and fish and shell-fish 
within the county; and prescribe and enforce the collection of penalties 
for the violation thereof." 

See section 169 of the Conservation Law on the duty of 

game protectors to enforce these laws. 
Compare section 4, subdivision 13, of chapter 194 of the 

Laws of 1849. 
Compare section 1, subdivision 16, of chapter 482 of the 

Laws of 1875. 
Compare section 12, subdivision 8, of chapter 686 of the 

Laws of 1892. 



General, Powers and Duties of Commission 85 

By Chapter 488 of the Laws of 1892, Forest, Fish 
and Game Law, Section 272, all laws or ordinances 
theretofore passed by any board of supervisors of any 
county in the State relating to birds, fish, shell-fish and 
wild animals, were repealed except those passed in Suf- 
folk county as to salt water fishing. 

Compare section 334 of the Conser\'ation Law. 

By Section 273 of Chapter 488 of the Laws of 1892, 
however, it was still provided : 

" Boards of supervisors may pass at their annual session such laws 
and ordinances as shall afford additional protection to and further 
restrictions for the protection of birds, fish, shell fish and wild animals, 
except wild deer, and to prohibit the taking and killing of the same, 
but no such ordinance shall be operative until a duly authenticated 
copy thereof shall have been filed in the office of the clerk of the 
county, and published in the papers in such county in which the 
session laws are published and filed in the office of the secretary of 
state, and it shall be the duty of the secretary of state to furnish a 
copy of such ordinance to the chief game protector, and to print 
all such ordinances in the volume of session laws for the current 
year. No such ordinance shall take effect until the first day of May 
nest after its passage." 

The volumes of the Session Laws of 1893, 1894 and 
1895 contain the lists of such laws and ordinances. 

In 1895 in the case of People v. Fish, 89 Hun 163, upon 
an interpretation of both the County Law and the Forest, 
Fish and Game Law, it was held that the power con- 
ferred upon boards of supervisors extended only to the 
enactment of such restrictions and prohibitions as were 
additional to those contained in the general state laws or 
in special or local State laws which State laws it might 
be seen were not intended to and did not cover the whole 
subject or take it exclusively to themselves. 

It w^as further stated that such supervisor's laws could 
not conflict with or override state legislation on the same 
subject. 



86 Game Law Guide 

The volumes of the Session Laws from 1896 inclusive 
on do not contain any such laws or ordinances passed 
by boards of supervisors and there evidently were none 
considered valid, due to this decision. 

All of Chapter 488 of the Laws of 1892 was repealed 
by Chapter 20, of the Laws of 1900, Forest, Fish and 
Game Law, but the section of the County Law, for what 
reason it is hard to say, still remains apparently undis- 
turbed. 

In 1902, the Attorney-General in rendering an opinion 
on the interpretation of this section of the County Law 
in question merely referred to the case of People v. Fish 
and reiterated that additional restrictions apparently 
might be made by boards of supervisors provided such 
restrictions did not conflict with or override state legis- 
lation. 

Attorney-General's Report, 1902, page 298. 

This power vested in boards of supervisors whatever 
it is has been declared constitutional. 

See New York State Constitution, article III, section 27 

Smith V. Levinus, 8 N. Y. 472. 
People V. Alden, 112 N. Y. 117. 

This authority must however be so exercised as to 
make restrictions general in their application and can- 
not be used to create any privileged class as for instance 
those tvithin the county. 

Hallock V. Dominy, 7 Hun 52 (69 N. Y. 238). 

The difficulty with this power of the board of super- 
visors is to determine in what respects it may be exer- 
cised and the lengths to which it can go. It would appear 
to authorize the establishment of close seasons, prohibit 
the use of certain kinds of guns, appoint and pay county 
protectors as is done in Maine, feed game birds and 
quadrupeds and make other provisions which might be 



Generax, Powers and Duties of Commission 87 

said to be consistent with the scheme of the law and not 
in conflict with it inasmuch as would they give greater 
and not less protection to fish and game. 

This philosophy, however, is not supported by People 
V. Fish, for in that case a supervisor's law forbidding 
the netting of menhaden where the State law permitted 
it, was condemned in broad terms. 

Because of its '^ subjection" and this uncertainty as 
to what would be deemed covered by the State law and 
what not and in view of the broad powers of the Com- 
mission as to additional protection, closes and refuges 
under the Conservation Law, it would seem altogether 
wise to repeal the section of the County Law for it 
appears to have been treated for practical purposes as 
valueless since the decision in People v. Fish. 

In fact the purpose of the Conservation Law is to 
cover the subject of fish and game. 

Another form of expression, which the so called state 
ownership of wild animals assumes is the authorized 
seizure and confiscation not only of the animals taken 
contrary to the law, but in man}^ instances and to dif- 
fering extents the confiscation and forfeiture of the 
paraphernalia used in the commission of the violation. 

This exercise of the police power has apparently never 
been seriously questioned as far as the animals acquired 
or possessed in contravention of the statute are con- 
cerned, but it has been attacked as unconstitutional to 
the extent that the forfeiture of the devices used 
attached, and in the main, in vain. 

A reference to at least a few of the authorities upon 
this vital proposition cannot be other than of surpassing 
interest and value, both from the standpoint of the police 
power in general and its exercise in this respect in 
particular. 

In the case of Lawton v. Steele, 119 N. Y. 226 (1890), 
152 U. S. 133, Chapter 317 of the Laws of 1883, Section 



88 Game Law Guide 

2, corresponding largely to the present Section 282 of 
the Conservation Law on nets, was challenged as in viola- 
tion of the constitutional provision that no person shall 
be deprived of his property without due process of law. 
The defendant, a game protector, had seized and de- 
stroyed certain nets, the property of the plaintiff, used in 
violation of the law and the acts of the protector and 
the statute under which he justified himself were upheld 
both in the New York Court of Appeals and the Supreme 
Court of the United States upon grounds set forth in 
the following excerpts from the opinions written in those 
cases : 

" The act in question declares tliat nets set in certain waters are 
public nuisances, and authorizes their summary destruction. The 
statute declares and defines a new species of public nuisance, not 
known to the common law, nor declared to be such by any prior 
statute. But we know of no limitation of legislative power which 
precludes the legislature from enlarging the category of public nui- 
sances, or from declaring places or property used to the detriment 
of public interests or to the injury of the health, morals or welfare 
of the community, public nuisances, although not such at common 
law. There are, of course, limitations upon the exercise of this power. 
The legislature cannot use it as a cover for withdrawing property 
from the protection of the law, or arbitrarily, where no public right 
or interest is involved, declare property a nuisance for the pui-pose 
of devoting it to destruction. 

There are numerous examples in recent legislation of the exercise 
of the legislative power to declare property held or used in violation 
of a particular statute, a public nuisance, although such possession 
and use before the statute were lawful. 

The legislative power to regulate fishing in public waters has been 
exercised from the earliest period of the com m on law. 

It has become a settled principle of public law that power resides 
in the several states to regulate and control the right of fishing in the 
public waters within their respective jurisdictions. 

We think it was competent for the legislature, in exercising the power 
of regulation of this common and public right, to prohibit the taking 
of fish with nets in specified waters, and by its declaration, to make 
the setting of nets for that purpose a public nuisance. 

The legislature in the act in question, acting upon the theory and 
upon the fact (for so it must be assumed) that fishing with nets in 



General Powers and Duties of Commission 89 

proliibited waters is a public injury, have applied the doctrine of the 
common law to a case new in instance, but not in principle, and made 
the doing of the prohibited act a nuisance. This we think it could 
lawfully do. 

The more diflfieult question arises upon the provision in the second 
section of the act of 1883, which authorizes any person, and makes 
it the duty of the game protector to abate the nuisance caused by 
nets set in violation of law, by their summary destruction. 

The right of summary abatement of nuisances without judicial 
process or proceeding was an established principle of the common 
law long before the adoption of our constitution, and it has never 
been supposed that this common law principle was abrogated by the 
provision for the protection of life, liberty and property in our State 
Constitution, although the exercise of the right might result in the 
destruction of property. 

The public remedy is ordinarily by indictment for the punishment 
of the offender, wherein on judgment of conviction the removal or 
destruction of the thing constituting the nuisance, if physical and 
tangible, may be adjudged, or by bill in equity filed in behalf of the 
people. But the remedy by judicial prosecution in rem or in personam, 
is not, we conceive, exclusive, where the statute in a particular case 
gives a remedy by summary abatement, and the remedy is appropriate 
to the object to be accomplished. 

But as the legislature may declare nuisances, it may also, where the 
nuisance is physical and tangible, direct its summary abatement by 
executive officers, without the intervention of judicial proceedings, in 
CHses analogous to those where the remedy by summary abatement 
existed at common law. 

But the remedy by summary abatement cannot be extended beyond 
the purpose implied in the words, and must be confined to doing what 
is necessary to accomj^lish it. And here lies, we think, the stress of 
the question now presented. It cannot be denied that in many cases 
a nuisance can only be abated by the destruction of the property in 
which it consists. The cases of infected cargo or clothing and of 
impure and unwholesome food are plainly of this description. They 
are nuisances per se, and their abatement is their destmction. So, also, 
there can be little doubt, as we conceive, that obscene books or pic- 
tures, or implements only capable of an illegal use, may be destroyed 
as a part of the process of abating the nuisance they create, if so 
directed by statute. The keeping of a bawdy house, or house for the 
resort of lewd and dissolute people, is a nuisance at common law. But 
the tearing down of the building. so kept would not be justified as the 
exercise of the power of summary abatement, and it would add nothing, 
we think, to the justification that a statute was produced authorizing 



90 Game Law Guide 

the destmetion of the building- summarily as a part of the remedy. 
The nuisance consists in the case supposed in the conduct of the owner 
or occupants of the house, in using or allowing it to be used for the 
immoral purpose, and the remedy would be to stop the use. This would 
be the only mode of abatement in such case known to the common law, 
and the destruction of the building for this purpose would have no 
sanction in common law or precedent. 

But where a public nuisance consists in the location or use of tan- 
gible personal property, so as to interfere with or obstruct a public 
right or regulation, as in the case of the float in the Albany basin 
(9 Wend. 571), or the nets in the present case the legislature may, we 
think, authorize its summary abatement by executive agencies without 
resort to judicial proceedings, and any injury or destruction of the 
property necessarily incident to the exercise of the summary juris- 
diction interferes with no legal right of the owner. But the legislature 
cannot go further. It cannot decree the destruction or forfeiture of 
property used so as to constitute a nuisance as a punishment of the 
wrong, nor even, we think, to prevent a future illegal use of the 
property, it not being a nuisance per se, and appoint officers to execute 
its mandate. The plain reason is that due process of law requires a 
hearing and trial before punishment, or before forfeiture of property 
can be adjudged for the owner's misconduct. Such legislation would 
be a plain usurpation by the legislature of judicial powers, and under 
guise of exercising the power of summary abatement of nuisances, the 
legislature cannot take into its own hands the enforcement of the 
criminal or quasi-criminal law. 

The inquiry in the present case comes to this : Whether the destruc- 
tion of the nets set in violation of law, authorized and required by 
the act of 1883, is simply a proper, reasonable and necessary regu- 
lation for the abatement of the nuisance, or transcends that purpose, 
and is to be regarded as the imposition and infliction of a forfeiture 
of the OTATiers' right of property in the nets, in the nature of a punish- 
ment. We regard the case as very near the border line, but we think 
the legislation may be fairly sustained on the ground that the destruc- 
tion of nets so placed is a reasonable incident of the power to abate 
the nuisance. 

It is conceivable that nets illegally set could, with the use of care, 
be removed without destroying them. But in view of their position, 
the difficulty attending their removal, the liability to injury in the 
process, their comparatively small value, we think the legislature could 
adjudge their destruction as a reasonable means of abating the nuisance. 

It is insisted that the provision in the act of 1883 authorizes the 
destruction of nets found on the land, on shores or islands adjacent 
to waters, where taking of fish by nets is pi'ohibited, and that tliis part 



General. Powers and Duties of Commission 91 

of the statute is in any view unconstitutional. Assuming this premise 
it is claimed that the whole section must fall, as the statute, if uncon- 
situtional as to one provision, is unconstitutional as a whole. This 
is not, we think, the general rule of law, where provisions of a statute 
are separable, one of which only is void. On the contrary the general 
rule requires the court to sustain the valid provisions, while rejecting 
the others. Where the void matter is so blended with the good that 
they cannot be separated, or where the court can judicially see that 
the legislature only intended the statute to be enforced in its entirety, 
and that by rejecting part the general purpose of the statute would be 
defeated, the court, if compelled to defeat the main purpose of the 
statute, will not strive to save any part." 

See the present reading of section 282 as to presumptive 
evidence. 

One of the dissenting judges of the Supreme Court of 
the United States in the course of his opinion made the 
following statement : 

" The police power rests upon necessity and the right of self -pro- 
tection, but private property cannot be arbitrarily invaded under the 
mere guise of police regulations, nor forfeited for the alleged violation 
of law by its owner nor destroyed by way of penalty inflicted upon 
him without opportunity to be heard." 

The Wisconsin act, a practical counterpart of Section 
282, was upheld by the Wisconsin courts in the case of 
Bittenhaus v. Johnston, 32 L. R, A. 380, an extract from 
the opinion in the case reading as follows : 

" The plaintiff having voluntarily put the nets to an unlawful use 
which made them public nuisances under the statute, is in no position 
to recover damages from the defendants for having as public officials 
obeyed the law in abating the nuisance by seizing and destrojdng the 
nets. Of course the plaintiff had his right of action to determine 
whether the nets were or were not in such unlaivful use. We must hold 
that the plaintiff has not been deprived of his property without due 
process of law." 

Chapter 383 of the Laws of 1896, which provided for 
the summary seizure of any boat or vessel used by one 
person in interference with oysters or other shell-fish 
belonging to another and for its forfeiture and sale by 



92 Game Law Guide 

an exclusive procedure before a justice of the peace with 
no provision for a jury trial, was held in the case of 
Colon V. Lisk, 153 N. Y. 188 (1897) to be in violation of 
Article I, Sections 2 and 6 of the New York State Con- 
stitution and the 14th Amendment to the United States 
Constitution, particularly on the ground that the act in- 
volved an unauthorized confiscation of something used 
in interference with private rights as distinguished from 
the public right, interest and welfare involved in Lawton 
V, Steele. 

In the case is the foUomng quotation from Lawton v. 
Steele, 152 U. S. 133 : 

" If authority to enact the statute under consideration existed, it 
was by virtue of the police power vested in the legislature. Under the 
power, persons and property may be subjected to necessary restraints 
and burdens to secure the general public good. That that power exists 
is undenied. That it is necessary to the proper maintenance of the 
government of the state and the general welfare of the community, 
must also be admitted. Although it includes everything essential to 
the safety, health, morals and general good of the public, it is by no 
means unlimited. To justify the state in thus interposing its authority 
in behalf of the public it must appear, first, that the interests of the 
public generally, as distinguished from those of a particular class, 
require such interference; and, second, that the means are reasonably 
necessary for the accomplishment of the purpose and not unduly 
oppressive upon individuals. The legislature may not, under the guise 
of protecting the public interest, arbitrarily interfere with, private busi- 
ness or impose unusual and unnecessary restrictions upon lawful occu- 
pations. In other words, its determination as to what is a proper exer- 
cise of its police powers is not final or conclusive, but is subject to the 
supervision of the courts." 

The case of McConnell v. McKillip, 65 L. E. A. 610 
(1904), involved the test of the validity of a Nebraska 
statute which provided as follows : 

"All guns, ammunition, dogs, blinds, and decoys, and any and all 
fishing tackle in actual use by any person or persons while hunting or 
fishing in this state without license or permit, when such license or 
permit is required by this act, shall be forfeited to the state; and it is 



GrENERAL Powers and Duties op Commission 93 

made the duty of the commissioner and every officer charged with, the 
enforcement of this act to seize, sell, or dispose of the same in the 
manner provided for the sale or disposition of property on execution, 
and to pay over the proceeds thereof to the county treasury for the 
use of the school fund." 

Under this act, guns were seized by a protector and 
an action in replevin was brought against him by the 
owner of the guns. 

The Supreme Court of Nebraska in deciding the case 
and declaring the act unconstitutional rendered an opin- 
ion of which the following are partial quotations : 

" The protection of wild animals suited for the purpose of food 
from indiscriminate slaughter by hunters has been the object of legis- 
lation from the most ancient times. The theory upon which the law- 
making power assumes to act is that all wild game belongs to the state 
in its sovereign capacity as a trustee for the whole of the public, and 
that consequently the state may, as a proper exercise of its police 
power, adopt such rules and regulations with reference to its preserva- 
tion, and such penalties with reference to a violation of such regula- 
tions, as are necessary to accomplish the end desired, — the preserva- 
tion to the people of the state of the pleasure, sport and profit derived 
from the hunting, pursuit and capture of wild animals living therein. 
In this case, the defendant in error, McKillip, admits that it is within 
the power of the state, in the just exercise of its police powers, to 
prohibit the killing of fish and game at certain seasons of the j^ear, 
but denies that it has the right to take his property from him and 
confiscate it to the state without giving him his daj' in court. He con- 
tends that the police power in regard to the confiscation of guns, dogs, 
blinds, decoys and fishing tackle is upon exactly the some footing as 
the police power in regard to regulation of the sale of intoxicating 
liquors, and that, since before liquors which have been seized are 
destroyed there must be a judicial determination by a court as to 
whether the owner was engaged in unlawfully selling or keeping for 
sale intoxicating liquors, so there must be as to his property. He 
further contends that since the statute contains no provisions for deter- 
mining whether the property was liable to condemnation for the crim- 
inal acts of those who had it in their possession, and since it merely 
authorized the game warden to seize the property without warrant 
or process, to condemn it without proof, and to sell it as upon execu- 
tion, it deprives the plaintiff of the property rights which are guaran- 
teed to him by the Constitution." 



94 Game Law Guide 

After a reference to and a discussion of several author- 
ities, among them the Wisconsin case, Bittenhans v. 
Johnston, and in chief the New York case, Lawton v. 
Steele, the opinion quotes from the latter case as decided 
by the United States Supreme Court to this extent : 

" The main, and only real difficulty connected with the action in 
question, is in its declaration that any net, etc., maintained in violation 
of any law for the protection of fisheries is to be treated as a public 
nuisance ' and may be abated and summarily destroyed by any person ; 
and it shall be the duty of each and every protector aforesaid, and 
every game constable, to seize, remove and forthwith destroy the same.' 
The legislature, however, undoubtedly possessed the power, not only to 
prohibit fishing by nets in these waters, but to make it a criminal offense, 
and to take such measures as were reasonable and necessary to prevent 
such offenses in the future. It certainly could not do this more effectu- 
ally than by destroying the means of the offense. * * * In this case 
there can be no doubt of the right of the legislature to authorize judi- 
cial proceedings to be taken for the condemnation of the nets in ques- 
tion, and their sale or destruction by process of law. Congress has 
assumed this power in a large number of cases, by authorizing the 
condemnation of property which has been made use of for the purpose 
of defrauding the revenue. Examples of this are vessels illegally 
registered or owned, or employed in smuggling or other illegal traffic, 
distilleries or breweries illegally carried on or operated, and buildings 
standing upon or near the boundary line between the United States and 
another country, and used as depots for smuggling goods. In all these 
cases, however, the forfeiture was decreed by judicial proceeding. But 
where the property is of little value, and its use for the illegal purpose 
is clear, the legislature may declare it to be a nuisance, and subject to 
summary abatement. Instances of this are the power to kill diseased 
cattle, to pull down houses in the path of conflagrations, the destruc- 
tion of decayed fruit, or fish or unwholesome meats, of infected cloth- 
ing, obscene books or pictures, or instruments which can only be used 
for illegal purposes. While the legislature has no right arbitrarily to 
declare that to be a nuisance which is clearly not so, a good deal must 
be left to its discretion in that regard, and, if the object to be accom- 
plished is conducive to the public interest, it may exercise a large 
liberty of choice in the means employed." 

The opinion goes on to say: 

"No case has been brought to our attention in which a court has 
construed a statute which provides for the seizure, forfeiture to the 



General Powers and Duties of Commission 95 

state, and sale of property of the kind involved in this case which has 
been used in violation of the game laws. As a rule the statutes have 
declared nets and like devices which can only be used in violation of 
law to be public nuisances, and provided for their abatement by their 
destruction by public officers. The distinction between nets, which, 
under the laws of the states providing for their destruction, can only 
be used for an unlawful purpose, and firearms, which, under the laws 
of this and other states, may be used for many other purposes, inno- 
cent and lawful in their nature, is clearly apparent, and has been 
recognized bj^ our legislature in the act under consideration. In 1, 
article 3 of this act, the legislature of the state has provided : ' Every 
net, seine, trap, explosive, poisonous or stupefying substance or device, 
used or intended for use in taking or killing game and fish in violation 
of this act is hereby declared to be a public nuisance, and may be 
abated and summarily destroyed by any person; and it shall be the 
duty of every such officer authorized to enforce this act to seize and 
summarily destroy the same, and no prosecution or suit shall be main- 
tained for such destruction : Pro^dded, that nothing in this subdivision 
shall be construed as authorizing the seizure or destruction of firearms, 
except as hereinafter provided.' The provisions of this section as to 
nets and like devices are substantially the same as those contained in 
the game laws of New York and Wisconsin, heretofore referred to, and 
with the conclusions of these courts with reference to laws of like 
nature we have no fault to find. But there is a broad distinction 
between this section and section 3 under which the plaintiff in en'or 
justifies. The legislature has not declared a gun to be a public nuisance 
and has not ordered its destruction as an abatement of the same. The 
seizure of the property provided for by this section is evidently 
intended, not only to put it out of the power of the offending person 
to carry on the destruction of game by depriving him of the implement 
of destruction, but also to operate as a penalty or punishment for an 
unlawful act committed by him. It is of the nature of a common-law 
forfeiture of goods upon conviction of a crime. 

There is a clear and marked distinction between that species of 
property which can only be used for an illegal purpose, and which, 
therefore, may be declared a nuisance and summarily abated, and that 
which is innocent in its ordinary and proper use, and which only 
becomes illegal when used for an unlawful purpose. We know of no 
principle of law which justifies the seizure of property, innocent in 
itself, its forfeiture, and the transfer of the right of property in the 
same from one person to another as a punishment for crime, without 
the right of a hearing upon the guilt or innocence of the person charged 
before the forfeiture takes effect. If the property seized by a game 



96 Game Law Guide 

keeper or warden was a public nuisance, such as provided for in sec- 
tion 1, he had the right under the duties of his office at common law 
to abate the same without judicial process or proceeding; and the great 
weight of authority is to the effect that such common-law rights have 
not been abrogated or set aside by the provisions of the Constitution; 
if the property is of such a nature, that though innocent in itself and 
susceptible of a beneficial use, it has been perverted to an unlawful 
use, and is subject to forfeiture to the state as a penalty, no person 
has the right to deprive the owner of his property summarily, without 
affording opportunity for a hearing and without due process of law. 
The usual course of proceedings in such case has been either, as in 
admiralty and revenue proceedings, to seize the property, libel the 
same in a court of competent jurisdiction, and have it condemned by 
that court, or, as in criminal matters, to arrest the offender, and to 
provide that upon his conviction the forfeiture of the property to which 
the offender's guilt has been imputed, and to which the penalty attaches, 
should take place. These have been the methods of procedure for cen- 
turies. No other has been pointed out to us in the brief of the plaintiff 
in error. We are therefore constrained to the opinion that in so far as 
the section under consideration provides for the seizure, forfeiture and 
tansfer of title to property without a hearing upon the guilt or inno- 
cence of its owner, it violates the constitutional provisions. Whether 
or not a forfeiture can be provided for as a punishment for crime 
under our Constitution is a question not raised or decided in this case." 

The proved illegal use, to which any device whether 
termed legal or illegal, is actually put seems to be the 
test as to whether forfeiture can properly be made to 
attach to it. 

/ A punt or sivivel gun, usually deemed an illegal device, 
when operated by one in possession of a hunting license 
could be legally used to take birds and quadrupeds not 
protected by law. 

Minnow seines or nets to take minnows for one's per- 
,sonal use and not for sale or landing nets to secure 
angled fish can be legally used by any person without a 
license. 

But barring the exception in Section 185, subdivision 8, 
no gun of any kind can he legally used to take wild birds 



GrENERAL PoWERS AND DuTIES OF COMMISSION 97 

or quadrupeds, whether protected by law or not, with- 
out a license and full compliance with all the subdivi- 
sions of Section 185. 

Such considerations as these have been urged to dis- 
count the distinction drawn in McConnell v. McKillip 
between nets and guns. 

The Nebraska statute, however, provided for a for- 
feiture summary in character and not based upon con- 
viction or confession of guilt, of that which the court 
held, could not be deemed a nuisance per se and was not 
declared by statute to be a nuisance. 

The gist of these decisions appears to be to uphold 
and authorize as proper exercises of the police power 
with reference to the protection of the public property 
in fish and game : 

First. The abatement without trial or hearing by 
summary forfeiture and destruction, of devices used 
which may properly be deemed or declared to be 
nuisances per se, such as illegal devices. See Section 
282 on nets. Section 221 on snares, nets and traps for 
birds and Section 177-1 on guns not fired at arm's length 
from the shoulder. 

Second. The abatement without trial or hearing by 
summary forfeiture and destruction, of devices used, 
made nuisances by statute where abatement reasonably 
or necessarily involves destruction. 

See the same sections above referred to. 

Third. The forfeiture to and disposition of by, the 
state, of devices otherwise legal, but illegally used or 
used in connection with a violation of the law whether 
declared nuisances or not, upon conviction, judgment or 
confession of the unlawftd use. 

In any event, it seems, the offender may test the valid- 
ity of the exercise of the power upon the issue of actual 
use of the device. 
7 



98 Game Law Guide 

Upon one or two or all three of the above principles, 
the statutes of practically all the states and all of the 
Canadian provinces more or less drastically provide 
for the seizure, confiscation and forfeiture of parapher- 
nalia of all kinds. 

The Pennsylvania statute provides for a conditional 
seizure and sale to satisfy the fine or penalty imposed 
in case of its non-payment, regardless of whether the 
offender suffers in addition by imprisonment or not : 

"All guns, boats, decoys, dogs, game, and shooting paraphernalia, 
seized when such arrest is made shall be held subject to the deter- 
mination of the proceedings instituted. Where the party accused is 
convicted all game seized shall be forfeited to the Commonwealth, and 
as soon as may be shall be forwarded to the most convenient hospital, 
or to a hospital designated by the Secretary of the Game Commission, 
for the use of the sick or injured therein. Unless the fine and costs 
are paid, all such seized guns, boats, decoys, dogs and shooting para- 
phernalia shall be sold at public auction, after advertising the same 
for five days, by at least five public handbills conspicuously posted 
in the city, borough, or township wherein the conviction was secured. 
The sale shall be held by or under the authority of the proper alder- 
man, magistrate, or justice. The cost of such advertising shall be part 
of the costs of prosecution, and shall be collected as such. Any fund 
thus arising shall be applied first to the payment of the costs of prose- 
cution, then to the pajonent of the fine imposed. The remainder, if 
any, shall be returned to the owner of the property seized. Where 
game, dogs, boats, decoys or shooting paraphernalia of any descrip- 
tion shall be seized, and the owner thereof escapes arrest, and refuses 
to present himself and make claim to the property, all such game, 
after the lapse of three days after the seizure, shall be forfeited to the 
Commonwealth, and shall be sent to the most convenient hospital, for 
the purpose before indicated in this section. All guns, dogs, boats, 
decoys, and other shooting paraphernalia thus seized shall be held for 
a period of ten days; after which time, if the owner thereof fail to 
appear and defend himself against the charges made, such property 
shall be sold in the manner prescribed for the sale of seized property 
after conviction. The fund arising from such sale shall be applied as 
in the case of the sale after conviction. The fact that imprisonment 
is suffered by anj person con\dcted of violating any provisions of this 
act shall not prevent the sale of guns, dogs, boats, decoys, or other 
shooting paraphernalia of any description, held as the property of the 
imprisoned party, and the application of the fund thus realized to 
the payment of the costs and the fine imposed." 



GrENERAL, Powers and Duties of Commission 99 

The Oregon Statute provides: 

"All guns, dogs, boats, traps, fishing apparatus and implements 
used in hunting or fishing or taking any of the wild animals, birds, 
or fish of the State of Oregon in violation of the law, shall be declared 
a public nuisance and shall be forfeited and shall be seized by any 
member of the State Board of Fish and Game Commissioners, by the 
State Game Warden, Master Fish Warden, or any deputy or any other 
officer charged with the enforcement of the game and fish laws of the 
State, and in ease of conviction shall be held, proceeded with and 
disposed of as may be directed by the State Board of Fish and Game 
Commissioners: provided, that where deemed practicable, any game 
seized may be given away for charitable purposes; provided further, 
that any moneys derived from the sale of any seized guns, dogs, boats, 
traps, fishing apparatus, or implements shall be deposited in the game 
protection fund and used for the protection and propagation of any 
game animals, game birds or game fish of the State." 

The Wisconsin Statute declares forfeited to the state 
as public nuisances : 

"Any net of any kind when set, placed or found in any waters where 
such net is prohibited to be used. 

Any seine or other devices, traps or contrivances set, placed, or 
found in any waters in a manner prohibited by any law relating to 
such waters. 

Any gill net operated in inland lakes without a license, or without 
a metal tag, as required by law. 

Except as authorized by license dul}^ issued, any set line, cable, rope, 
or line witli more than one fishline attached thereto, either directly or 
indirectly, or any fishline left in the water unattended by the person 
using the same, whether having one or more hooks attached. 

Any building, enclosure, structure, or shelter placed, occupied or 
used on the ice of any waters in violation of this chapter. 

Any screen set in public w^aters to prevent the free passage of fish. 
or set in any stream which has been stocked by state authorities. 

Any net, spread upon or under the surface of any waters, which 
shall or might entrap, ensnare, or kill any wild bird. 

Except as expressly authorized to be used any trap, snare, spring 
gun, or other device or contrivance which might entrap, ensnare, or 
kill any wild animal for which a close season is prescribed in this 
chapter. 

Any boat, together with its machinery, sails, tackle and equipment, 
or any lamp, or light, or gun used in violation of this chapter. 



100 Game Law Guide 

Any pivot or swivel gun, or other firearm, not habitually held at 
arm's length and discharged from the shoulder, while the same is in 
unlawful use. 

Any boat, floating raft, box, blind or decoys used or set in season for 
waterfowl, or in excess of the number authorized to be used, or more 
than two hundred feet from the weeds, rushes, or other vegetation in 
which the hunter is concealed. 

Any dog found running deer at any time, or used in violation of 
this chapter. 

Any ferret unlawfully used in hunting, catcliing, taking or killing 
rabbits." 

Under the Wisconsin act, guns, etc., are confiscated 
every season. 

Seizures and forfeitures generally are covered by Sec- 
tion 154 of the CONSERVATION LAW as follows: 

Whenever any fisli, birds, wild animals or parts thereof, or any 
devices used, in taking the same illegally, are found in the posses- 
sion or under the control of a person contrary to law, said fish, 
birds, wild animals, or parts thereof, together with the device or 
devices used in taking the same, shall be seized and confiscated in 
the name of the state. The commission may dispose of such fish, 
birds or wild animals or devices in such manner as it deems 
proper. 

See section 222a. 

See section 1899 of the Penal Law; sections 685-691 of the 
Criminal Code. 

This declaration covers essentially all illegal devices 
in reinforcement of Sections 177-1, 282 and 221, for the 
use of an illegal device is the worst form of illegal use 
of a device. 

See section 322 on lobster traps. 

The section is broad enough to embrace both animate 
and inanimate devices and would it seems include not 
only guns, tackle, boats, artificial stools, etc., but also 
such aids to taking as dogs, falcons, ferrets and live 
decoys. 

Comj)are section 169 on powers of game protectors. 



Genekal Powees and Duties of Commission 101 

Whether any person, but a game protector could law- 
fully in good faith make the seizure on behalf of the 
state is a query but it would seem justifiable in the case 
of the animals upon proof of the violation and in the 
case of paraphernalia on proof of the illegal use. 

The best considered authorities appear to hold that 
a public nuisance can be abated by an individual only 
where it obstructs his private right or interferes at the 
time with his enjoyment of a right common to many 
whereby he sustains a special injury. 
Lawton v. Steele, 119 N. Y. 237. 

On the other hand, the offender having acquired no 
title to the game so taken and having according to the 
statute forfeited to the state the paraphernalia used 
would be in a poor position to hold the person making 
the seizure, liable. 

Compare James v. Wood, 82 Maine, 173, and the discussion 
under section 169, chapter XVI. 

Section 154 based squarely upon illegal use of the 
device evidently contemplates a seizure by game pro- 
tectors for purposes of evidence pending conviction or 
confession of or judgment in a civil action for, the viola- 
tion; upon that presupposed basis, the confiscation and 
forfeiture attach to the device on the ground that it con- 
stitutes a nuisance by virtue of illegal use as well as 
perhaps a part of the punishment for the offense; and 
to the game for the reason that no title to it has been 
acquired; in the event the issue went against the state, 
no forfeiture could of course legally attach. 

Compare section 182, on penalties. 

It is stated in Rockefeller v. Lamora, 106 A. D. 348, 
that the people can have no interest in trespasses upon 
posted lands or private parks and to the extent that such 
holding is true, no forfeiture would attach to parapher- 
nalia used by persons merely violating Part XI of the 
law. 



102 Game Law Guide 

The rights of the Commission in taking fish are set 
forth in Section 155 : 

The commission may take fish with nets at such times and in 
such manner as it may deem proper for the artificial propagation 
of fish. The commission may also remove, permit or cause to he 
removed from puhlic or private waters, fish which hinder or pre- 
vent the propagation of game or food fish. Such removal shall 
be effected by any means and under such regulations as the com- 
mission may provide. Fish taken under this section may be dis- 
posed of and possessed under such regulations as the commission 
may establish. Any person not in charge of a state net who shall 
handle or take fish while confined therein, or shall fish within one 
hundred feet of any leader or net in use by the state shall be 
guilty of a misdemeanor. 

Compare sections 176 and 177-2. 

It was held by the attorney-general in 1910 that the 
Commission could not issue a license to third person 
under the section as it then stood. 

See Attorney-General's Eeport, 1910, page 774. 

The permit now provided for should be carried by 
the person operating under it. 

The Commission's powers in the matter of the pur- 
chase of fish eggs are governed by Section 156: 

The commission may purchase from any person, fish eggs, paying 
for the same in cash, or giving in exchange or in consideration 
therefor, a percentage of the young fish hatched or produced at 
any of the fish hatcheries of the state from the eggs so purchased; 
and the placing of such young fish in waters on lands of such per- 
sons shall not be deemed a stocking of such waters with fish by 
the state, or fish from state hatcheries. 

Compare section 176 and 177-2. 

Compare section 360 as to stocking with state fish. 

The Wisconsin act has a provision to the following 

effect : 

"Any person fishing in any of the waters of this state shall deliver, 
on demand, to the state conservation commission, or its deputies, or 



General Powers and Duties of Commission 103 

authorized agents all kinds of fish, during the spawning season, for 
the purpose of being stripped of their eggs and milt; and the person 
receiving them shall, immediately after having stripped the fish, return 
them to the person from whom received. Any such person shall permit 
the commission, or its deputies, or authorized agents to enter any boats, 
docks, grounds or other places where such fish may be, for the purpose 
of stripping the same while alive, and shall render such assistance as 
may be necessary to expedite the work of the mixture of the eggs and 
milt for proper impregnation." 

See section 235 as to netting in the Great Lakes. 

The antliority of the Commission to acquire beaver, 
deer, moose, elk, etc., is covered by Section 157 : 

The commission may acquire by gift, purchase or capture a 
sufficient number of beaver, deer, moose or elk to stock the Adiron- 
dack region, and may care for and yard the same temporarily and 
liberate them in such region and at such times and places as it 
deems most conducive to their probable subsistence and increase. 
Deer may be taken alive at any time by the commission to restock 
the state's deer parks or to exchange for elk or moose. 

See section 176. 

As to the destruction of certain birds and quadrupeds 
committing depredations and damage, an important pro- 
vision properly much less liberal than the acts of some 
other states is made by Section 158 : 

In the event that any species of birds protected by the provisions 
of section iivo hundred and nineteen of this article, or quadrupeds 
protected by law, shall at any time, in any locality, become destruc- 
tive of private or public property the commission shall have power 
in its discretion to direct any game protector or issue a permit 
to any citizen of the state to take such species of birds or quad- 
rupeds and dispose of the same in such manner as the commission 
may provide. Such permit shall expire witliin four months after 
the date of issuance. 

See section 176. 

This section does not apply to game birds as defined 
by Section 211. 

See section 219 as to non-game birds. 



104 Game Law Guide 

The Massachusetts statute includes pheasants and the 
laws of several of the states lay particular stress upon 
deer. 

In a New Hampshire case, Aldrich v. Wright, 53 N. H. 
398, involving the killing of minks in close season where 
they were pursuing and killing geese, it was held gener- 
ally that the killing of wild animals in close season wliile 
they were pursuing and destroying domestic animals was 
not a violation of the game law. 

See section 196 as to bares and rabbits. 
See section 199 as to skunks. 
See section 220 as to defacement of buildings. 
See section 197 as to beaver. 

A person operating under this section with a gun must 
comply with Section 185 on hunting licenses and should 
be compelled to carry upon his person the permit issued 
by the Commission. 

This permit does not justify a trespass. 
See rule 35. 

Licenses to collect and possess specimens for propa- 
gation, scientific or exhibition purposes are provided for 
in Section 159: 

The commission may issue a license revocable at its pleasure to 
any person, permitting the holder to collect or possess flsh, aquatic 
animals, quadrupeds, birds, birds' nests or eggs for propagation, 
scientific or exhibition purposes. Before such license is issued, 
every applicant except a game protector, duly chartered museum 
or soeietij incorporated for scientific or public exhibition purposes, 
or an officer thereof, must file written testimonials from two well 
known scientific men; pay one dollar for the license and file a 
bond in the penal sum of two hundred dollars with two responsible 
sureties, to be approved by the commission, conditioned that he 
will not violate the provisions of this article or avail himself of 
the privileges of said license for purjDoses not herein set forth. 

Any one may in a manner not amounting to disturb- 
ance of the wild animals photograph them during the 
close season without a license. 



GrENERAL Powers and Duties of Commission 105 

A person operating under such a license with a gun 
must comply with Section 185 on hunting licenses and 
should be compelled to carry on his person the license 
issued pursuant to this section. 

This license does not justify a trespass. 

See rule 35. 

See sections 17G and 219. 

The commission may also issue a license revocable at pleasure 
to any person, permitting such person to possess any species of 
fish, game birds, aquatic animals or quadrupeds, protected by this 
chapter, for propagation purposes, lapon payment of a license fee 
of one dollar. The commission may, in its discretion, require a 
bond from such person, in such sum as the conomission may 
determine, conditioned that he will not avail himself of the privi- 
leges of said license for purposes not herein set forth. 

The commission may issue permits to enable persons to ship 
fish, aquatic animals, game and quadrupeds lawfully taken and 
possessed for propagation, scientific or educational purjDOses, under 
such regulations as the commission may prescribe. 

Fish, aquatic animals, quadrupeds and game lawfully possessed 
under this section may be sold at any time by any person receiv- 
ing a license under this section for propagation, scientific, educa- 
tional or exhibition purposes only. 

See rule 23. 

Persons receiving a license under this section must report the 
result of operation thereunder annually to the commission, at 
the expiration of the license. Such license shall be in force for one 
year only from the date of issue and shall not be transferable. 

This does not authorize the possession of fish or game 
taken in close season or distributed by the State, 

Subdivision 2 of this section should be availed of by 
every association organized for or interested in fish and 
game propagation and protection. Rearing stations for 
developing purchased fish should be established through 
co-operation with the Commission and with the farmers 



106 Game Law Guide 

and upon leased land breeding farms for purchased game 
should be conducted. 

See section 176 and 219. 

The publication by the Commission of the laws on fish 
and game is covered by Section 160 : 

As soon as practicable after the adjournment of the legislature 
in each year, the commission shall make a compilation of the laws 
relating to fish and game as amended at the date of such compila- 
tion, and properly index the same. Copies of said compilation 
sufiScient in number for the puri30ses of this section shall be 
printed in pamphlet form of pocket size, under the direction of 
the clerks of the senate and assembly, and such clerks shall dis- 
tribute them as follows : one hundred copies to each senator; fifty 
copies to each assemblyman; twenty thousand copies to the com- 
mission for general distribution. It shall be the duty of the 
commission to prepare and issue a syllabus of the said laws and to 
deliver to county, city and town clerks a supply sufficient for 
fuiTiishing one copy to each person procuring a hunting or trap- 
ping license, and each such person shall be entitled to one copy 
of said syllabus. 



CHAPTER V 



HUNTING, TRAPPING AND FISHING LICENSES 

The regulations and requirements as to licenses and 
the exaction of fees therefor in all sovereignties appear 
from the first to have been conceded to be proper exer- 
cises of the police power. 

Kyle V. People, 80 N. E. 1081 (111.). 
State V. Holcomb, 101 Pac. 1072 (Kansas). 
Cumndngs v. People, 211 111. 392. 

Aside from their restrictive and revenue features, 
licenses furnish the basis for the identification of per- 
sons in case of violation, trespass or mishap. 

One of the foremost propositions to be borne in mind 
with reference to Section 185 on hunting and trapping 
licenses, is that no birds or quadrupeds or wild animals 
of any kind whether protected hy laiv or not can be law- 
fully taken with a gun except in compliance with all of 
the provisions of the license section. 

Another principle properly referred to at this point is 
that the law technically prohibits the taking of birds and 
quadrupeds protected hy law with any other device than 
the type of gun allowed by statute except where the trap- 
ping of fur-bearing animals is permitted or special pro- 
vision is otherwise made. 

See sections 176 and 177, subdivision 1. 

Thus, it is claimed, any person especially a minor, 
under the age of sixteen, is left free, without the use of a 
gun, to hunt or to trap, ivithout a license, animals not 

[107] 



108 Game Law Guide 

protected by law provided such animals are otherwise 
legally taken. 

See section 177-1. 

The language " or engage in hunting or trapping " 
together with the definitions of hunting and taking does 
not appear to overthrow that contention. 

See section 185 subdivisions 1 and 5. 

Section 185, subdivisions 1-15, provides: 

Subd. 1. No person or persons shall at any time hunt, pursue 
or kill with a gun, any wild animals, fowl or birds or take with 
traps or other devices any fur bearing animals, or engage in hunt- 
ing or trapping except as herein provided, without first having 
procured a license so to do, and then only during the respective 
periods of the year when it shall be laivful. 

See sections 158 and 159. 

This prohibition applies to game protectors and to all 
persons. 

The Conservation Law contains no exact definition of 
what constitutes a gnn, but according to Section 1896 of 
the Penal Law, it includes firearms of all kinds and all 
guns or instruments in which the propelling force, is 
spring or air. 

Hunting is defined by Section 380, subdivision 27, as 
follows : 

"Hunting" includes pursuing, shooting, killing, capturing and 
trapping game or quadrupeds, and all lesser acts such as disturb- 
ing, harrying, or worrying, or placing, setting, draiving or using 
any device commonly used to take game or quadrupeds whether 
they result in taking or not; and includes every attempt to take 
and every act of assistance to any other person in taking or 
attempting to take game or quadrupeds. 

See section 380, subdivision 26, defining taking referred 
to under section 176. 



Hunting, Trapping and Fishing Licenses 109 

The definition of hunting makes apparently equally 
liable with the hunter, his companions and those who 
" but follow to fill up the cry " unless they promptly 
repudiate any acts of violation by reporting the same to 
a game protector or the Commission. 

Compare People v. White, 124 A. D. 79. 

Any minor under the age of sixteen or other person, 
however, provided he does not use a gun, may, it seems, 
without a license lawfully accompany any person on a 
hunt, provided he does not actively participate in the 
actual taking of game. 

There is no definition of fur-hearing animals, but of 
the quadrupeds protected hy law, for which an open sea- 
son is provided, they include only the mink, raccoon, 
sable, skunk and muskrat. All quadrupeds not protected 
by law which have a fur or pelt value might be so. 
classified. 

Excluded are all other quadrupeds protected hy law, 
especially heaver, hares, rabbits, black, gray and fox 
squirrels. 

See section 176. 

The application for such license is provided for as 
follows : 

Subd. 2. Said license shall be procured from any county, city 
or town clerk in the following manner, to wit : The applicant shall 
fill out a blank application to be furnished by the commission 
through the clerk of each county, city or town, stating name, age, 
occupation and place of residence and post office address of 
applicant, also whether a citizen of the United States or an alien 
and such other facts or descriptions as may be required by the 
commission. Said application shall be subscribed and sworn to 
by the applicant before any officer authorized to administer oaths 
in the state of New York. Any false statement contained in such 
ajjplication shall render the license null and void. Any person who 
shall make any false statement in an application for a license, 



110 Game Law Guide 

shall be deemed guilty of perjury, and, on conviction thereof, shall 
be subject to the penalties provided for the commission of perjury. 

There is notliing which requires an applicant to pro- 
cure his license from the clerk of the town, city or county 
where the applicant resides. 

Any license proved to have been procured in violation 
of this subdivision is no license and entitles the holder 
to no protection. 

Such perjury is punishable by imprisonment for a 
term not exceeding ten years. 

See section 1633 of the Penal Law. 

The fees for licenses are fixed as follows : 

Subd. 3. Said applicant, if a resident of the state for over six 
months and a citizen, shall pay to the clerk countersigning and 
issuing the license the sum of one dollar as a license fee, together 
with the sum of ten cents as the fee of the county, city or town 
clerk for issuing such license, and if a nonresident of the state, 
or an unnaturalized person or an alien, resident or nonresident, 
shall pay to the clerk countersigning and issuing the license the 
sum of ten dollars together with the sum of fifty cents as a fee 
to the clerk. 

The discrimination against the non-residents and 
aliens is based mainly upon the philosophy that as 
between the State and individuals whether citizens resi- 
dent or non-resident or aliens, the permission to take 
wild animals which are the property of the State is a 
privilege extended to them rather than a vested prop- 
erty right. 

Acts providing that no person shall at any time hunt 
with a gun any of the wild animals or birds which are 
protected during any part of the year without having 
procured a license are constitutional and a reasonable 
exercise of the police power for the protection of game. 

Cummings v. People, 211 111. 392. 



Hunting, Trapping and Fishing Licenses 111 

A landowner's right to take fish or game on his own 
land which inheres in him by reason of his ownership of 
the soil is a property right, subject, however, to the 
State's ownership of and title to wild animals and its 
regulations for the preservation and protection of fish 
and game. 

State V. Mallory, 67 L. R. A. 773. 

The title to wild game is in the State as against the 
individual irrespective of the ownership of the land on 
which it may be found and the State may prohibit or 
regulate the killing of game and impose greater restric- 
tions upon non-residents than upon residents. 

Cummings v. People, 211 111. 393. 

In some of the states licenses can be issued to minors 
under the age of sixteen years who are not less than 
fourteen years and in some cases twelve years of age 
upon the written consent of parent or guardian. 

The laws of all the states have grown severe with 
respect to aliens. 

The New Jersey statute prohibits any unnaturalized 
foreign born person unless he owns real estate of the 
value of at least two thousand dollars above incum- 
brances, not only from hunting, but also from owning or 
possessing a shot gun or rifle of any make and provides 
for the confiscation of the guns. 

The Pennsylvania statute is even more drastic and 
apparently makes no exception in favor of alien owners 
of real estate. 

The Pennsylvania statute was tested in the case of 
Commonwealth v. Papsone, 231 Pa. Supreme Court 45, 
232 U. S. 138. 

The courts upheld the statute as constitutional and in 
the course of the decision, it was stated : 

Nor does the provision of the fourteenth amendment which declares, 
" No state shall make or enforce any law which shall abridge the 



112 Game Law Guide 

privileges or immunities of citizens of the United States," affect 
this defendant in any way, as he is not a citizen. 

An alien wliile domiciled with us, is entitled to the protection of the 
laws and owes in return for this protection a temporary and local 
allegiance which continues during the period of his residence; 2 Am. 
& Eng. Enc. of Law 64. We legislate primarily for our own citizens 
in granting the special privileges that are independent of our inherent 
rights. The alien is prohibited from doing many things to which a 
native born or a naturalized citizen is entitled. He cannot exercise 
any political rights whatever, nor be compelled to fill any elective or 
appointive office. He is not qualified to serve as a juror; or to receive 
a license to sell liquor, hawk or peddle. A non-resident is not entitled 
to the benefit of our $300 exemption law. Each state has its own 
exemption laws for the benefit of its own citizens. 

The jDrivilege to hunt game has been limited to our own citizens, and 
as was said in Presser v. Illinois, 116 U. S. 252; "If the plaintiff in 
error has any such privilege he must be able to point to the provision 
of the constitution or statute of the United States by which it is con- 
ferred. For as was said by this Court in U. S. v. Cruikshank, 92 U. S. 
542, the government of the United States, although it is within the scope 
of its powers, supreme and beyond the states, can neither grant nor 
secure to its citizens rights or privileges which are not expressly or by 
implication placed under its jurisdiction. All that cannot be so granted 
or so secured are left to the exclusive protection of the state." 

Whatever one may claim as a right, under the constitution and laws 
of the United States by virtue of his citizenship, is a privilege of a 
citizen of the United States. Whatever the constitution and laws of 
the United States entitles him to exemption from, he may claim as an 
exemption in respect to, and such a right or privilege is abiidged when- 
ever the state law interferes with any legitimate operation of Federal 
authority which concerns his interests, whether it be an authority 
actively exerted, or resting only in the express or implied command or 
assurance of the Federal Constitution or law. But the United States 
can neither grant nor secure to its citizens, rights or privileges, which 
are not expressly, or by reasonable implication, placed under its juris- 
diction, and all not so placed are left to the exclusive protection of the 
states. 

This defendant is not a citizen of the United States, nor of this 
Commonwealth. While he is within our jurisdiction he is entitled to the 
equal protection of the laws, subject to the limitations of the class of 
which he is a member. 

Citizens of other states have no property right which entitles them 
to fish against the will of the state, a fortiori, the alien from whatever 
country he may come, has none whatever in the waters, or the fisheries 



Hunting, Trapping and Fishing Licenses 113 



of the state. Like other privileges he enjoys as an alien, by permission 
of the state, he can only enjoy as much as the state vouchsafes to yield 
to him as a special privilege. To him it is not a property right, but 
is in the strictest sense a privilege or favor. 

It was even held in the case of Commonwealth v. 
Maloof, 49 Pa. Superior Court 581, that the possession 
of a shotgun or rifle by an alien operating a shooting 
gallery was a violation of the act. 

There is no express provision of the Conservation Law 
which prohibits the issuance of a license to minors under 
the age of sixteen. 

While the Conservation Law contemplates the issuance 
of a license to an alien, there is grave question as to 
whether any alien can be entitled to be in possession of 
any gun afield. 

The question of the use of guns by minors and aliens 
is covered by Sections 1896 and 1897 of the Penal Law, 
constituting what has been popularly termed The Sulli- 
van Law, and the text of those sections is set forth here 
in full as being of both essence and interest in connection 
with the substance of this work : 

1896. Making and disposing of dangerous weapons. A person who 
manufactures, or causes to be manufactured, or sells or keeps for 
sale, or offers or gives, or disposes of any instrument or weapon of the 
kind usually known as a slungshot, billy, sandclub or metal knuckles, 
to any person or a person who offers, sells, loans, leases, or gives any 
gun, revolver, pistol or other firearm or any air gun, spring gun or other 
instrurri,ent or weapon in which the propelling force is a spring or air 
or any instrument or weapon commonly known as a toy pistol or in or 
upon "which any loaded or blank cartridges are used, or may be used, 
or any loaded or blank cartridges or ammunition therefor to any person 
under the age of sixteen years is guilty of a misdemeanor. 

1897. A person who attempts to use against another, or who carries, 
or possesses, any instrument or weapon of the kind commonly known 
as a blackjack, slungshot, billy, sandclub, sandbag, metal knuckles, 
bludgeon, or who, with intent to use the same unlawfully against 
another, carries or possesses a dagger, dirk, dangerous knife, razor, 
stilletto, or any other dangerous or deadly instrument or weapon is 

8 



114 Game Law Guide 

guilty of a misdemeanor, and if he has been previously convicted of 
any crime he is guilty of a felony. 

A person who carries or possesses a bomb or bombshell, or who, 
with intent to use the same unlawfully against the person or property 
of another carries or possesses any explosive substance is guilty of a 
felony. 

Any person under the age of sixteen years, who shall have, carry, or 
have in his possession, any of the articles named or described in the 
last section, which is forbidden therein to offer, sell, loan, lease or give 
to him, shall be guilty of juvenile delinquency. 

Any person over the age of sixteen years, who shall have in his 
possession in any city, village or town of this state, any pistol, revolver 
or other firearm of a size which may be concealed upon the person, 
without a written license therefor, issued to him as hereinafter pre- 
scribed, shall be guilty of a misdemeanor, and if he has been previously 
convicted of any crime he shall be guilty of a felony. 

Any person over the age of sixteen years, who shall have or carry 
concealed upon his person in any city, village or town of this state, 
any pistol, revolver, or other firearm without a written license therefor 
issued as hereinafter prescribed and licensing such possession and 
concealment, shall be guilty of a misdemeanor, and if he has been pre- 
viously convicted of any crime he shall be guilty of a felony. 

Any person not a citizen of the United States, unless authorized by 
license issued as hereinafter prescribed, who shall have or carry fire- 
arms, or any dangerous or deadly weapons in any place at any time, 
shall be guilty of a misdemeanor, and if he has been previously con- 
victed of any crime he shall be guilty of a felony. 

It shall be the duty of any magistrate in this state to whom an appli- 
cation therefor is made by a commissioner of correction of a city or by 
any warden, superintendent or head keeper of any state prison, peni- 
tentiary, workhouse, county jail or other institution for the detention 
of persons convicted of or accused of crime, or offenses, or held as 
witnesses in criminal cases, to issue to each of such persons as may be 
designated in such applications, and who is in the regular employ in 
such institution of the state, or of any county, city, town or village 
therein, a license authorizing such person to have and carry concealed 
a pistol or revolver while such person remains in the said employ. 

It shall be the duty of any magistrate in this state, upon application 
therefor, by any householder, merchant, storekeeper or messenger of 
any banking institution or express company in the state, and provided 
such magistrate is satisfied of the good moral character of the applicant, 
and provided that no other good cause exists for the denial of such 
application, to issue to such applicant a license to have and possess 



Hunting, Trapping and Fishing Licenses 115 

a pistol or revolver, and authorizing him (a) if a householder, to have 
such weapon in his dwelling, and (b) if a merchant, or storekeeper, to 
have such weapon in his place of business, and (c) if a messenger of a 
banking institution or express company, to have and carry such weapon 
concealed while in the employ of such institution or express company. 

In addition, it shall be lawful for any magistrate, upon proof before 
him that the j^erson applying therefor is of good moral character, 
and that proper cause exists for the issuance thereof, to issue to such 
person a license to have and carry concealed a pistol or revolver with- 
out regard to employment or place of possessing such weapon, provided, 
however, that no such license shall he issued to any alien, or to any 
person not a citizen of and usually resident in the state of New York, 
except by a judge or justice of a court of record in this state, who shall 
state in such license the particular reason for the issuance thereof, 
and the names of the persons certifying to the good moral character of 
the applicant. 

Any license issued in pursuance of the provisions of this section may 
be limited as to the date of expiration thereof and may be vacated and 
canceled at any time by the magistrate, judge or justice who issued 
the same or by any judge or justice of a court of record. Any license 
issued in pursuance of this section and not otherwise limited as to 
place or time or possession of such weapon, shall be effective through- 
out the State of Neiv York, notwithstanding the provisions of any 
local law or ordinance. 

This section shall not apply to the regular and ordinary transporta- 
tion of firearms as merchandise, nor to sheriffs, policemen, or to other 
duly appointed peace officers, nor to duly authorized military or civil 
organizations, when parading, nor to the members thereof when going 
to and from the place of meeting of their respective organizations. 

There are no fees therefor and the justice may issue 
the license regardless of the residence of the licensee. 
The license, it seems, need not be carried on the person. 

Report of Attorney-General, 1913, Vol. II, page 579. 
See section 169 on Powers of Game Protectors. 
See section 1897-a of the Penal Law referred to under 
section 177-1 chapter VIII. 

There appears to be nothing in these sections of the 
Penal Law which allows or provides for a license to, an 
alien to carry a gun afield, unless the license referred to 
in the ninth paragraph of Section 1897 issued by a judge 
of a court of record as to concealable weapons might be 
construed to cover non-concealable weapons. 



116 Game Law Guide 

The contention has been made that the Penal Law and 
Conservation Law should be so amended as to allow an 
alien upon the production of a license issued under the 
Penal Law and the presentation of his first naturaliza- 
tion papers, a special form of hunting license, but those 
most familiar with the alien's ingrained lawlessness as 
to fish and game and weapons, urge that no alien be per- 
mitted to fish or hunt at all, regardless of possible rev- 
enue lost. 

The disposition of license fees is covered as follows : 

Subd. 4. The license fees above pro\aded for shall be remitted 
by the city and town clerks on the first Tuesday of each month to 
the county clerk of the county, with duplicate schedules setting 
forth the name and residence of each licensee and the serial 
number of and the amount paid for each license issued. Such 
license fees, less three per centum thereof which the county clerk 
is hereby authorized to retain for his compensation, and the 
license fees received by the county clerk for issuing licenses from 
his oflice, less three per centum thereof for such compensation shall 
belong to the state and shall be remitted to the commission on 
the second Tuesday of each month with a duplicate of said schedule, 
and the fees so received by the commission shall be remitted by 
the commission to the state treasurer as ate fines and penalities. 

The contents of the license and the powers of the 
licensee under it are prescribed as follows: 

Subd. 5. Said license shall be issued in the name of the com- 
mission, and be sealed with the seal of the county, city or town in 
which the same is issued and be countersigned by the clerk issuing 
the same. Every license issued shall be signed by the licensee in ink 
on the face thereof. It shall entitle the person to whom issued to 
hunt, pursue and kill game animals, fowl and birds and trap fur 
bearing animals within the state at any time when or place where 
it shall be lawful to hunt, pursue, kill and take such game animals, 
fowl and birds in this state. 

See section 185, subdivision 1. 

The hunting license justifies no trespass upon private 
lands or waters. In order that persons afield and par- 



Hunting, Tkapping and Fishing Licenses 117 

ticTilarly violators and trespassers may be identified, it 
is provided: 

Subd. 6. No person to whom a license has been issued shall be 
entitled to take wild animals, fowl or birds, or trap fur hearing 
animals in this state unless at the time of such taking he shall have 
such license on his person, and shall exhibit the same for inspection 
to any protector or other officer or other person requesting to see 
the same. Such licensee shall also wear in a conspicuous place on 
his clothing a button to be furnished by the commission through 
the clerks issuing licenses. Buttons shall be uniform in size and 
at least two inches in diameter and shall bear a number correspond- 
ing to the number of the license delivered to the applicant and 
such other matter as may be deteimined by the commission. The 
failure of the licensee at all times while hunting, trapping or tak- 
ing wild animals, fowl or birds, to wear such button in a con- 
spicuous place on his clothing shall cause a forfeiture of his 
license. Such person shall suiTender upon demand his license and 
button to any game protector or other person duly authorized by 
the commission to receive the same. No other or additional penalty 
than the forfeiture of his hunting or trapping license, as herein 
provided, shall be suffered by a licensee failing to wear such button. 
But such forfeiture shall not operate to prevent a person from 
procuring another license as provided in this section. The pro- 
visions of this section with respect to the issuance of and the 
wearing of a button shall take effect January first, nineteen hun- 
dred and seventeen. 

Failure of the licensee to sign, in ink, on the face of 
the license, it seems, technically renders him liable for 
the penalty. 

See section 182, chapter XVII, on Procedure. 

The license must be exhibited for inspection to any 
person whether protector, hunter, landowner or other- 
wise, upon request; and inspection means a reasonable 
opportunity to get from the license the number thereof, 
the name of the licensee and any other desired data. 

The loss of the license on the trip is techyiicaUy no 
defense. 

Although hunting on the highway is prohibited by 



118 Game Law Guide 

Section 222, that fact furnishes no reason for refusing to 
comply with the above subdivision if the acts of the 
person upon whom the demand is made, come within the 
definition of taking or hunting. 

By the Pennsylvania statute, the possession by any 
person upon the highway of a gun and the dead body of 
any bird or animal is presumptive evidence that such 
person is hunting. 

The great difficulty is to determine by any definition 
or rule when a person is taking or hunting animals so as 
to require him to have upon his person and to exhibit his 
hunting license. He cannot be said to be hunting when 
the hunt is all done or before it has commenced. He 
may be merely target or trap shooting afield or shooting 
obnoxious domestic animals. The mere possession in 
hand of a gun or game, or both, would not necessarily 
constitute taking or hunting in the sense meant, for such 
possession might be under such circumstances as would 
render it absurd to claim that the person was hunting 
as for instance on trains or trolleys, in vehicles or on 
the streets of a city. 

Strange to say, it was even held in the case of Corn- 
well V. Fraternal Accident Association, 6 North Dakota 
201, that a person who had started to hunt certain game 
with a loaded gun at a season of the year when it was 
unlawful to hunt such game had not by such act com- 
mitted the offense of attempting to kill such game. But 
this case arose on the question of whether the plaintiff 
had by the commission of a violation of the law forfeited 
his rights under an insurance policy. 

It might reasonably be claimed that where a person is 
afield in a locality where game is likely to be found and 
equipped for taking it, he is presum,ptively hunting ; and 
substantially to such effect are the statutes of West 
Virginia, Montana and Saskatchewan. 

Eegardless of technicalities it is advisable to carry the 
license at all times and under all circumstances. 



Hunting, Teapping and Fishing Licenses 119 

However, at best, it must be admitted that whether a 
person is taking or hunting wild birds or quadrupeds or 
animals is a question of fact under all the circumstances 
surrounding the particular transaction. 

See People v. Jacobs, 165 A. D. 721. 

Subd. 7. Such license shall be void after the thirty-fii-st day of 
December next succeeding its issuance. 

As a concession to actual bona fide occupants of farm 
lands, an exception and exemption in their favor are 
made as follows : 

Subd. 8. Provided that the owner or owners of farm land and 
their immediate family or families occupying and cultivating the 
same, or the lessee or lessees thereof and their immediate family 
or families who are actually occupying and cultivating the same, 
shall have the right to hunt, kill and take game or trap fur bearing 
animals on the farm land of which he or they are the bona fide 
owners or lessees, during the season when it is lawful to kill and 
take the same, without procuring such resident license ; and further 
provided that minors under the age of sixteen years shall not be 
required to take out a license to trap fur hearing animals. 

Section 380, subdivision 28, defines immediate family 
as follows: 

" Immediate family " as used in subdivision eight of section one 
hundred and eighty-five of this chapter includes all persons who are 
related by blood, marriage or adoption and domiciled in the house 
of the owner or lessee. 

This definition excludes guests and employees. 

Lessees would appear to include those working farm, 
lands on shares. 

This exemption appears to hold good as to citizens and 
aliens alike provided they are actual occupants. 

It seems that the exception does not apply to non- 
resident or non-occupant citizens. 

The exemption does not apply to owners of exclusive 



120 Game Law Guide 

hunting rights apart from ownership of the farm land 
itself. 

While the Legislature could remove this exemption 
altogether if it saw fit to do so and while licenses may be 
exacted from non-resident or non-occupant citizens even 
when hunting on lands which they own, it has been held 
in an Arkansas case that the Legislature of a state can- 
not prohibit the non-resident citizen owner of lands from 
hunting on them because of his non-residence alone. 

The case of State v. Mallory, 67 L. R. A. 773, arose 
upon these facts : Malloiy, a native of Virginia and a 
bona fide resident and citizen of Tennessee, owned a 
large tract of land in Arkansas, on which there was good 
hunting and fishing. The general assembly of Arkansas 
had passed a statute reading as follows : "It shall be 
unlawful for any person who is a non-resident of the 
state of Arkansas to shoot, hunt, fish or trap at any sea- 
son of the year." 

The statute was successfully attacked on the ground 
that it violated the Fourteenth Amendment of the Con- 
stitution of the United States : 

" No state shall make or enforce any law which shall abridge the 
privileges or immunities of citizens of the United States ; nor shall any 
state deprive any person of life, liberty or property without due process 
of law; nor deny to any person within its jurisdiction the equal pro- 
tection of the laws." 

After referring to the principles of and the authorities 
on the quasi property rights in and to fish and game 
which vest in the owner of the land on which they are 
found subject to state regulation, the opinion concurred 
in by the majority of the judges concludes : 

" We therefore conceive it to be settled by authority and by long 
recognition in the law that the owner of land has a right to take fish 
and wild game upon his own land, which inheres in him by reason of 
his ownership of the soil. It is not, however, an unqualified and 
absolute right, but is bounded by these limitations: That it must 



Hunting, Teapping and Fishing Licenses 121 

always yield to the state's ownersliip and title, held for the purposes 
of regulation and preservation for the public use. These two owner- 
ships or rights — that is to say, the general ownership of the state 
for one purpose, and the qualified or limited ownership of the 
individual, growing out of his ownership of the soil — are entirely 
consistent with each other, and in no wise conflict. The transitory 
nature of the property renders the benefits so diffusive that all may 
join in the enjoyment thereof, and for that reason the sovereign holds 
as the representative of the public so as to regulate and protect the 
common use. Still the right of the landowner to hunt and fish on his 
own lands is to that extent a special property right, though subordi- 
nate to the other. 

" The cases of Geer v. Connecticut, 161 U. S. 519, 40 L. ed. 793, 16 
Sup. Ct. Rep. 600, and Organ v. State, 56 Ark. 267, 19 S. W. 840, are 
pressed upon our attention with great force and earnestness by the 
learned counsel for the state, as conclusive of the case at bar. In both 
those cases the general doctrine of state ownership of wild game and 
fish is declared, but the language of the courts in those cases, when 
limited to the question under consideration, as must always be done 
when testing the soundness of a declared doctrine, is undoubtedly 
correct, and in no degree inconsistent with the views herein expressed. 
The cases were almost identical upon the facts, being criminal prosecu- 
tions for the unlawful exportation of game out of the state in violation 
of a statute prohibiting the same. We see no reason whatever in the 
opinion we now express for receding from the law declared by this 
court in Organ v. State. On the contrary, we adhere to it. The fullest 
latitude of power in the state to regulate and preserve the game for 
the common enjoyment is conceded, and no private property right 
therein which we hold to exist can retard or obstruct the exercise of 
that undoubted power. But we have another and altogether different 
question to deal with in this case — whether finding that landowners 
have a right to hunt and fish upon their own lands, which is a property 
right, they are entitled to equal protection in the enjoyment of that 
right with other landowners, or whether it can be destroyed by a law 
passed under the guise of a police regulation to preserve the fish and 
game, and the right of enjoyment prohibited for the sole reason that 
they are nonresidents of the state. It is not the fact that appellee is 
excluded from enjoyment of the common right of the citizen to fish 
and hunt because of his nonresidence that he may complain, but of the 
exclusion by reason of his nonresidence from such special right which 
he should enjoy in common with other landowners. Does the curtail- 
ment of this right fall within the prohibition of the 14th Amendment? 
A complete answer to the inquiry is made in the affirmative when the 



122 Game Law Guide 

conclusion is reached that the right denied is a property right. Non- 
resident owners may be called upon to share the public burdens, and 
property rights in some instances must yield to the public demands ; but 
the burden must rest equally upon all, and no discrimination in that 
respect be made against the nonresidents as such. Eldridge v. Treze- 
vant, 160 U. S. 452, 40 L. ed. 490, 16 Sup. Ct. Rep. 345. In so far as 
the statute under consideration prevents the same enjoyment by appellee 
of the property right afforded the more fortunate resident landowner, 
it is a denial of " ecjual protection of the law," within the meaning of 
the constitutional guaranty, and cannot be enforced, and the taking away 
of this right because of his nonresidence is without due process of law," 

See the important and interesting references to State v. 
Mallory in chapter XVIII. 

Whether the license exacted from a non-resident could 
be made so exorbitant as to be prohibitive is a very 
pointed query in view of the fact that this case has never 
been interpreted as preventing^ the requirement of a 
license from a non-resident owner before hunting on his 
own land. 

Strict prohibition against alterations or transfer of 
the license is made : 

Subd. 9. Any person who shall at any time alter or change in 
any material manner or loan or transfer to another, any license 
issued as aforesaid, shall be deemed guilty of forgery in the second 
degree, and, on conviction thereof, shall be punishable as provided 
in case of forgery in the second degree. 

Forgery in the second degree is punishable by not to 
exceed ten years' imprisonment. 

See section 888 of the Penal Law. 
See chapter XVII on Procedure. 

Special exceptions to general procedure are made as to 
the prosecution of both civil and criminal actions with 
respect to violations of the law as to licenses : 

Subd. 10. All prosecutions for a violation of the provisions of 
this article relating to licenses may be brought by any person upon 
order of the commission in the name of the people of the state of 
New York against any person or persans violating any of the 



Hunting, Trapping and Fishing Licenses 123 

provisions of this article, so far as it relates to licenses, before any 
court of competent jurisdiction ; and it is hereby made the duty of 
all district attorneys to see that the provisions of this section are 
enforced in their respective counties, and said district attorneys 
shall prosecute all offenders on receiving information of the viola- 
tion of any of the provisions of this section ; and it is hereby made 
the duty of all sheriffs, deputy sheriffs, constables and police officers 
to inform against and prosecute all persons who, there is reason- 
able cause to believe, are guilty of violating any of the provisions 
of this section. Nothing herein shall prevent the commission from 
prosecuting persons for violation of this section. 

There seems to be no distinction made between civil 
and criminal actions. 

Subd. 11. All moneys recovered in any penal action under this 
chapter, in so far as it relates to licenses, shall be remitted by the 
person or court recovering the same to the commission; one-half 
of the amount recovered in any penal action under this section, 
in so far as it relates to licenses, after all disbursements and 
expenses in relation to the same, including attorney's fees, shall 
have been paid, shall be paid to the person filing the complaint 
in such action by the state treasurer on approval of the com- 
mission, unless such person is a regular game protector. 

Subd. 12. All bills for costs, disbursements and attorney's fees 
in any action or proceeding under this article relating to licenses 
shall be duly verified, presented to the commission, audited by said 
commission and paid on its approval by the state treasurer to the 
person entitled to the sayne. 

The privileges extended by these provisions can be 
availed of by any person including those upon whom 
duties are laid except a regular game protector. The 
provisions appear to apply only to actions brought upon 
order of the Commission. 

See chapter XVII, on Procedure. 

Other provisions as to licenses are as follows: 

Subd. 13. The form of the license shall be determined and the 
license blank prepared by the commission, and by it furnished 
through the county clerks of the several counties of the state to 
the city and town clerks. 



124 Game Law Guide 

Subd. 14. Clerk's reports. On the thirty-first day of December 
of each year the city and town clerks shall detach the stubs of 
licenses issued and forward the same securely attached to a report 
of the number issued and tlie amount of license money received 
to the county clerk of the county, whose duty it shall be to see that 
proi:)er returns are made to him by all city and town clerks in his 
county, and to return to the commission all such stubs and reports 
with a final report recapitulating and tabulating the total number 
of licenses of all kinds issued in his county in the calendar year. 

Subd. 15. The county clerk shall be reimbursed by the state for 
postage and expressage used in distributing licenses to city and 
town clerks and for his monthly reports required to be made to 
the commission ; his bills therefor shall be presented, audited and 
paid as herein provided for other payments. 

The only present provision as to licenses for angling 
is that contained in Section 188 requiring a license from 
non-residents fishing in fresh boundary waters: 

Except as hereinafter provided, no person except a bona fide 
resident of this state for at least thirty days immediately prior 
to such taking, shall take any fish by angling in any of the fresh 
waters under the jurisdiction of the state of New York forming a 
part of the state boundary or through which the state boundary- 
runs or shall engage in fishing in such waters without first having 
procured a license so to do. Said license shall be procured in 
the manner provided in section one hundred and eighty-five hereof. 
The applicant shall pay to the clerk the sum of two dollars as a 
license fee therefor, together with the sum of fifty cents as a fee 
to the clerk; provided, however, that a nonresident person under 
the age of sixteen years, or a woman, may take fish, by angling, 
without obtaining a fishing license. The provisions of section one 
hundred and eighty-five in so far as the same are applicable to 
licenses shall apply to all licenses issued under this section. If a 
resident of this state may lawfully fish in such part of said bound- 
ary waters as are not within the jurisdiction of the state of New 
York without being required to obtain a fishing license from the 
state or country ha\dng jurisdiction over the said waters, then a 
resident of such state or country may take fish in such part of 
said boundary waters as are within the jurisdiction of the state of 
New York without obtaining the nonresident fishing license pro- 
vided for herein. 



Hunting, Trapping and Fishing Licenses 125 

A majority of the states and the Canadian provinces 
have provided for separate or combination hunting and 
angling licenses, the fees therefor going immediately to 
a game and fish protection fund. 

As a rule, minors up to a certain age, and all women, 
are exempted from the requirements as to the fishing 
license. 



CHAPTER VI 



THE BACKBONE OF THE LAW 

Section 176 

On behalf of the State and its so-called ownership of 
wild animals and in the exercise of the police power 
directed toward the protection of that ownership, the 
Legislature has prescribed a blunderbuss, omnibus, 
blanket prohibition against the taking, etc. of quadrupeds 
and birds and fish protected by law and the taking of fish 
whether protected by law or not except migratory food 
fish of the sea. 

See section 177, subdivisions 1, 2. 

This general prohibition is here and there reinforced 
by particular and specific prohibitions. 

It is the intent of the law that no quadruped or bird 
or fish protected by law shall be taken, etc., and no fish, 
except migratory food fish of the sea, whether protected 
by law or not can be taken, without violating the law 
unless a specific permission as to the particular animal 
in question and the particular manner of taking, etc., can 
be found in some particular provision of the statute. 

See section 177, subdivisions 1, 2. 

In other words for any act such as taking, possessing, 
buying, selling or transporting with reference to quad- 
rupeds or birds or fish protected by law and taking fish 
whether protected by law or not, excepting migratory 
food fish of the sea, the person committing such act can 
be prosecuted under Section 176 as well as under a 
specific prohibitive section and his justification must be, 

[126] 



The Backbone of the Law 127 

that by some permissive provision of the law the ad in 
question is made legal. 

This fundamental feature of the law upon which too 
much stress can not be laid was overlooked in the case of 
People V. Keenan, 80 M. 539, where the court in holding 
that blue pike could be taken with set lines, lost sight of 
the force of Section 176. 

See section 254, 

This principle was properly grasped and applied in the 
case of People v. Chamberlain, 92 M. 720, where it was 
held that the offense of taking rabbits with a ferret in 
violation of the specific prohibition contained in Section 
196 was properly charged and prosecuted as a violation 
of Section 176. 

See also People v. Bisbee, 90 M. 601, referred to under 
section 178. 

The general prohibition contained in Section 176 is as 
follows : 

No person shall at any time of the year, pursue, take, wound or 
kill, in any manner, number or quantity, any fish, quadrupeds or 
birds protected by law, or buy, sell, offer, or expose the same, or 
any part thereof for sale, transport or have the same in possession 
except as permitted by this article. {Nets except in the marine 
district, tip-ups, set and trap-lines, spears, grappling hooks, naked 
hooks, snatch hooks, eel weirs and eel pots shall not be used to 
take fish except as specifically permitted in this article.) Any 
person aiding in any manner in such prohibited acts shall be 
deemed to have violated this section. 

The general prohibition as far as fish not protected 
hy law are concerned does not apply to sales. 

See sections 158, 159. 

See section 185, as to hunting licenses. 

See section 177, subdivisions 1, 2. 



128 (xAME Laav Guide 

This prohibition applies to the State authorities as 
well as all other persons. 

See chapter III, on the powers of the commission as to fish 
and game. 

The provisions of the Conservation Law in all of these 
respects have been held to govern Indians hunting or 
fishing upon reservation lands regardless of treaty- 
rights. 

People ex rel. Kennedy v. Becker, 215 N. Y. 42. 
Ward V. Race Horse, 163 U. S. 504. 

''Taking" and "possession" are not necessarily 
synonymous or convertible terms. For instance, a hunt- 
ing license is required for the taking of animals with a 
gun but no hunting license is required for their possession 
after taking. 

Taking is defined by Section 380, subdivision 26 as 
follows : 

'' Taking " includes pursuing, shooting, hunting, killing, cap- 
turing, trapping, snaring and netting fish and game and all lesser 
acts snch as disturbing, harrying or worrying, or placing, setting, 
drawing, or using any net or other device commonly used to take 
fish and game, whether they result in taking or not; and includes 
every attempt to take and every act of assistance to any other 
person in taking or attempting to take fish or game. A person 
who counsels, aids or assists in a violation of any of the provi- 
sions of this article, or knowingly shares in any of the proceeds 
of said violation by receiving or possessing either fish, birds or 
game shall be deemed to have incurred the penalties provided in 
this article against the person guilty of such violation. Whenever 
taking is allowed by law, reference is had to taldng by lawful 
means and in lawful manner. 

The provision covers eggs of birds and spawn of fish. 

In view of this provision as to lesser acts a person in 
whose company a violation is committed to escape all 
question of liability should, it seems, immediately inform 



The Backbone of the Law 129 

a game, protector or the Commission and support the 
prosecution. 

Compare People v. White, 124 A. D. 79. 

Assuming that a person has complied with the law as 
to hunting and fisliing license, the interpretation of this 
section next involves a consideration of open and close 
season. 

Close season is defined by Section 380, subdivision 5: 

" Close season " is the time during which fish, fowl, birds and 
quadrupeds cannot he taken. 

Open season is defined by Section 380, subdivision 4 : 

" Open season " is the time during which fish, fowl, birds and 
quadrupeds may he taken. If in accordance with the provisions 
of this article the open season commences or ends on Sunday, it 
shall be deemed to commence or end as the case may be on the 
Saturday immediately preceding such Sunday. 

This reference to Sunday is doubtless in deference to 
Section 2145 of the Penal Law: 

''All shooting, hunting, fishing, playing, horse racing, gaming or other 
puhlic sports, exercises or shows upon the first day of the week, and 
all noise disturhing the peace of the day are prohibited." 

Rifle practice by the National Guard, if in the discre- 
tion of its officers necessary, has been held to be no 
violation of this section. 

Attorney-General's Report, 1912, vol. II, page 341. 

A violation of this section is Sabbath breaking, pun- 
ishable as provided in Section 2142 : 

Sabbath breaking is a misdemeanor, punishable by a fine not less 
than five dollars and not more than ten dollars, or by imprisonment 
in a county jail not exceeding five days, or hy hoth, but for a second 
or other offense, where the party shall have been previously convicted, 
it shall be punishable by a fine not less than ten dollars and not more 

9 



130 Game Law Guide 

than twenty dollars, and by imprisonment in a county jail not less than 
five nor more than twenty days. 

These provisions of the Penal Law relative to fishing 
were interpreted by the Court of Appeals in the case of 
People V. Moses, 140 N. Y. 214. 

The defendant was fishing on Sunday in a private lake 
by permission of the owner; it did not appear that he 
created any disorder or that he disturbed the peace or 
that his acts were actually witnessed by any one except 
the complainant, but he was convicted. The Court of 
Appeals stood three for affirmance and three for reversal 
and Judge Maynard decided the case on the following 
concurring statement : 

"Maynard, J., concurs in the result, upon the ground that there is 
sufficient evidence in the record to support a finding by the trial court 
that the act complained of was committed under such circumstance as 
to constitute a serious interruption of the repose and religious liberty 
of the community." 

Whatever arguments may be raised upon the interpre- 
tation of the Penal Law in the light of the decision in 
People V. Moses ; regardless of written or unwritten law 
upon the question; notwithstanding the differences of 
opinion as to whether Sunday hunting or fishing is 
malum prohibitum (wrong only because prohibited) or 
malum in se (involving moral turpitude) ; over and above 
all reliance on the Gospel of St. Mark, Chapter 2, Verses 
22-28, it still remains to be considered by those who are 
careless on this question that each Sunday could be 
absolutely excluded from the open season by the express 
terms of the Conservation Law or the prohibition could 
be made a part of the Game Law, as is the case in many 
of the states and Canadian provinces and formerly was 
in this State and under such circumstances it would be 
the duty of game protectors, as distinguished from their 
privilege, to enforce the prohibition. 



The Backbone of the Law 131 

The consideration of close season requires attention to 
such matters as fish and game closes, Section 153, fish- 
ways, Section 251, additional protective orders, Section 
152, and the closing of the forest preserve in times of 
drought, Section 54, subdivision 1. 

It involves Section 1906 of the Penal Law and the ordi- 
nances of cities and villages, prohibiting the discharge of 
firearms in public places. 

Section 1425, subdivision 10 of the Penal Law makes it 
a misdemeanor where any person: 

" Kills, wounds or traps any bird, deer, squirrel, rabbit or other 
animal within the limits of any cemetery or public burying ground, 
or of any public park or pleasure ground, or removes the young of 
any such animal, or the eggs of any such bird, from any cemetery, 
park or pleasure ground, or exposes for sale, or knowingly buys or 
sells any bird or animal so killed or taken." 

At this point are also properly referred to the pro- 
visions of Section 222 : 

Game shall not be taken on the lands purchased or condemned 
by any municipality within the state for the purpose of supply- 
ing any municipality with water and protecting the same from 
pollution and contamination, or on any public highway, except 
public highways other than state or county highways within the 
forest preserve counties. 

The indirect manner in which Part XI of the Conserva- 
tion Law relative to private parks, posted lands and 
game refuges affects this question is worth a reference 
and a reminder in this connection. 

The provisions of Section 176 as to the sale of dead 
birds are bulwarked by Section 180: 

The dead bodies of birds belonging to all species or sub-species, 
native to this state, protected by law or belonging to any family, 
any species or sub-s^oecies of which is native to this state and pro- 
tected by law shall not be sold, offered for sale, or possessed for 
sale for food purposes within this state whether taken within or 
without this state, except as provided by sections three hundred 
and seventy-two and three hundred and seventy-three. 
Compare sections 219 and 381. 



132 Game Law Guide 

All questions of sale of birds alive or dead are also 
covered by Section 176. 

Possession in certain cases is made presumptive evi- 
dence of a violation of Section 176 by the terms of Section 
181: 

Possession of quadnipecls, birds or fish or a part thereof, during 
the time when the taking of the same in this state is proJiibited, or 
when the possession of the same after the close of the open season 
is not permitted, shall be presumptive evidence that the same was 
unlawfully taken by the possessor. 

Quadrupeds, birds or fish, lawfully taken and possessed in one 
part of the state, may be transported by the taker as provided by 
section one hundred and seventy-eight of this chapter and may be 
possessed by the taker in a}iy jmrt of the state for the same period 
of time during which they may be lawfully possessed at the place 
where taken. 

See chapter XIV, on transportation. 

See the special provisions as to Long Island and any 
other localities. 

For matters of open season, limit, possession and sale, 
see the particular sections dealing with particular quad- 
rupeds, birds and fish. 

Alleged gifts of fish or game where in fact a valuable 
consideration or quid pro quo passes, no matter by what 
subterfuge, are in violation of the statute. 

Hunting or fishing for non-salahle quadrupeds, birds 
or fish, for hire where the quarry is turned over to the 
employer is in violation of the law and is expressly made 
so by the statutes of several of the states 

The statute of Ontario provides along such lines as 
follows : 

" No person shall for hire, gain or reward or hope thereof hunt, kill 
or shoot any game, or employ, hire or for valuable consideration induce 
any other person so to do; but this shall not apply to the bona fide 
employment of any person as guide to accompany a person lawfully 
hunting or shooting." 

There is a similar provision in Maine as to fishing. 



The Backbone of the Law 133 

For the definition of quadrupeds and birds protected 
by law, see the discussion under Section 177, subdivision 
1, and in Chapter VII, on insectivorous birds. 

For the definitions concerning fish in connection with 
which the clause in parenthesis in Section 176 must be 
read, see Section 177, subdivision 2. 

The questions of transportation, importation and 
exportation of fish and game are treated in Chapter XIV. 

As to all the foregoing propositions, the application 
of Section 176 and Article V generally as stated in Sec- 
tion 381 must be borne in mind : 

In all eases where possession, purchase or sale of fish or game or 
of the flesh of any quadruped, bird or fish is unlawful, possession, 
purchase or sale of the same species of fish or game or of the flesh 
of the same species of quadruped, bird or fish coming from or taken 
without the state, shall be deemed to be and is, except as otherwise 
expressly provided herein, unlawful. 

This section does not however apply to transportation. 

There seems to be no prohibition against the baiting 
of traps used to take fur-bearing animals. 

Where the taking in any manner is allowed it would 
not be construed to permit a form of taking which would 
unnecessarily endanger other animals which could not be 
taken in that fashion. 

Poisoning animals would ordinarily be prohibited by 
Section 190 of the Penal Law. 

Commission is synonymous with Conservation Com- 
mission. 

Gender and number are to be disregarded in constru- 
ing the law whenever necessary to carry out its spirit. 

Person includes a co-partnership, jointstock company 
or corporation. 

See sections 380-1, 2, 3. 



134 Game Law Guide 

A claim of agency is ordinarily no defense. 
See Rule 6, sections 196, 201. 

The Minnesota act provides : 

The word " person " shall be deemed to include partnerships, asso- 
ciations and corporations, and no violation of any provisions of this 
chapter shall be excused for the reason that the prohibited act was 
done as the agent or employe of another, nor that it was committed by 
or through an agent or employe of the person charged. 



CHAPTER VII 



SONG, PLUME AND INSECTIVOROUS BIRDS 

Wild birds protected by law as distinguished from 
birds included in game protected by law are dealt with in 
Section 219: 

Wild birds other than the English sparrow, starling, crow, hawTc, 
crow-blackbird, snow-otvl, great horned owl, great blue heron, 
bittern and kingfisher shall not be taken or possessed at any time, 
dead or alive, except under the authority of a certificate issued 
under this article. No part of the plumage, skin or body of any 
bird protected by this section or of any birds coming from without 
the state, whether belonging to the same or a different species from 
that native to the state of New York, provided such birds belong 
to the same family as those protected by this article, shall be sold 
or had in possession for sale. The provision of this section shall 
not apply to game birds for which an open season is provided in 
this article, or birds or parts thereof collected or possessed in 
accordance with the provisions of section one hundred and 
fifty-nine. 

See sections 158, 159, 180 and 181. 
See section 210, as to game birds. 

See chapter III, on Federal Laws and Regulations, as to 
migratory insectivorous birds. 

Some of the birds outlawed by this section might be 
deemed to come within the protection of the federal 
regulations on the ground that they are perching birds 
tvhicJi feed entirely or chiefly upon insects. 

The crow-blackbird is one instance of this possibility. 

The other kinds of grackle seem to be protected by 
both Section 219 and the federal regulations. 

While the redwing blackbird is not protected fully by 

[135] 



136 Game Law Guide 

the federal regulations (See regulation 3), it is abso- 
lutely protected by Section 219. 

There is great variety among the statutes of the several 
states as to these outlawed birds, but those mentioned by 
Section 219 seem to have met with unanimous and uni- 
versal condemnation. 

The Oregon statute provides that crippled or helpless 
birds or animals may be killed by any person or may be 
captured and retained as pets where it can be shown 
that the taking or killing was for humane purposes or for 
the purpose of saving the life thereof, provided the 
authorities are immediately notified. 

What birds are of the same family or species is a ques- 
tion for ornithologists. 

Report of Attorney-General, 1910, page 390. 
See section 381. 

No wild birds not legally possessed prior to the enact- 
ment of the statute (1908), can be kept alive in captivity, 
except (1) the outlawed birds, (2) exotic or foreign birds 
not of the same family or species as native birds and (3) 
such as are kept by virtue of Section 159. 

See section 175 and chapter XVIII, on Property Rights in 

Wild Animals. 
See People v. Cohen, 91 A. D. 89. 
See People v. Bootman, 40 M. 27. 
See People v. Fishbough, 134 N. Y. 393. 

The possession and sale of live canaries and parrots 
are expressly allowed by the Missouri statute. 

It has been held that a golden eagle could not be kept 
in captivity. 

Report of Attorney-General, 1902, page 179. 

Plumage is defined by Section 380, subdivision 22, as 
follows : 

'^ Plumage " includes any part of the feathers, head, wings or 
tail of any bird, and wherever the word occurs in this article ref- 



• 



Song, Plume and Insectivoeous Birds 137 

erence is had to plumage of birds coming from without the state 
as well as to that obtained within the state, but it shall not be con- 
strued to apply to the feathers of birds of paradise, ostriches, 
domestic fowl or domestic pigeons. 

See Tariff Act, chapter III. 

Many of the states require taxidermists to procure 
licenses and subject that business to rigid inspection and 
regulation. 

Section 220 further provides : 

Nests of icild birds other than the English sparrow, starling, 
crow, hatvk, croio-blackbird, snow-otvl, great horned owl and king- 
fisher shall not be robbed or wilfully destroyed except when neces- 
sary to protect buildings or prevent their defacement or when 
taken under the authority of the commission. 

See section 176. 

See section 1425 of the Penal Law, subdivision 10. 

This section. applies to the nests of both game and non- 
game birds. 

Note that this section does not except the nests of the 
great blue heron and bittern. 

See sections 158 and 159. 

Section 221 declares: 

No wild bird, or bird for which a close season is provided, shall 
be trapped, netted or snared, or, if so taken, possessed. No net, 
trap or snare for taking pheasants, grouse or quail, shall be set, 
placed or used where such birds can be taken. Any such net, trap 
or snare is declared to be a public nuisance, and may be summarily 
abated and destroyed by any person, and it shall be the duty of 
every protector to seize and destroy any such device. 

This section applies to both game and non-game birds. 

See section 176. 

Antwerp or homing pigeons while not strictly either 
game or non-game birds are protected by Section 218 : 

No person shall take or interfere with any Antiverp or homing 
pigeon if it have the name of its owner stamped upon its wing 



138 Game Law Guide 

or tail, or wear a ring or seamless leg band with its registered 
number stamped thereon, or have any other distinguishing mark; 
nor shall any person remove any such distinguishing mark from 
any such pigeon. 

Chapter 107 of the Laws of 1875, which allowed the 
shooting of pigeons from trap provided that such pigeons 
after being shot, if still alive, should be immediately 
killed, was repealed by Chapter 61 of the Laws of 1902. 

Such shooting was held not to be cruelty to animals 
in Commonwealth v. Lewis, 11 L. R. A. 522, but the con- 
trary was held in Walters v. People, 33 L. E. A. 836, 
and Paine v. Bergh, 1 City Courts Reports 160. 

See Ingham on Animals, 537-538. 

The shooting from trap of the birds outlaived by Sec- 
tion 219 would doubtless be held to be cruelty to animals. 

See Penal Law, sections 180-185. 

Such shooting of such birds is expressly prohibited 
by the Iowa law. 



CHAPTER VIII 



THE TAKING OF GAME PROTECTED BY LAW 

Section 177, Subdivision 1 

In reinforcement of Section 176 is Section 177, sub- 
division 1, with both its prohibitive and permissive 
features : 

Game protected by law shall only be taken in the day time after 
sunrise and before sunset with a gun fired at arm's length, without 
rest, unless otherwise specifically permitted by this article. A 
person may take birds and quadrupeds, during the open, season 
therefor, with the aid of a dog, unless specifically prohibited by 
this article. Any duly organized association for the protection of 
game may ru^n field trials for dogs at any time upon obtaining 
written permission from the Conservation Commission. 

See section 185, as to hunting licenses. 

The different kinds of "game " are defined by Sec- 
tion 380, subdivisions 7, 9, 10 and 8 : 

^' Game " includes wild game, game protected by law, domestic 
game and imported game. 

" Domestic game " includes quadrupeds and birds mentioned in 
section three hundred and seventy two. (See section 372.) 

" Imported game " includes quadrupeds and birds mentioned in 
section three hundred and seventy -three. (See section 373.) 

" Wild game " and '''' game protected, by law " include all game 
birds as defined and mentioned in section two hundred and ten, 
and all quadrupeds for which a close season is provided. 

See Section 210 and particular sections on quadrupeds. 
Section 177, subdivision 1, has to do only with wild game 
or game protected hy law. 

[139] 



140 Game Law Guide 

In Klieforth v. State, 88 Wisconsin 163, where the 
statute prohibited shooting in the night-time, it was held 
that it was day while there was day light enough to dis- 
cern a person's face, but this is not so under the Conser- 
vation Law nor is the test whether or not the flash of 
a gun can be seen. 

Night-time or night includes the time from sunset to 
sunrise. 

See section 220 of the Penal Law, and section 51 of the 
General Construction Law. 

Dag-time therefore excludes dawn before sunrise and 
dusk after sunset. 

It is all important to note that no game birds whether 
waterfoivl, shore birds, or upland birds and no quadru- 
peds protected by laiv unless otherwise specifically per- 
mitted by some subsequent section, can be taken before 
sunrise or after sunset; they are moreover to be taken 
only after sunrise and before sunset. 

Actual sunrise and sunset often cannot be observed 
because of topographical or weather conditions, but the 
exact time of each can be easily determined by reference 
to any standard almanac and a reliable watch. 

Emphasis is placed upon the use only of a gun of the 
type mentioned. This is primarily to exclude the use of 
the old punt or swivel gun and spring guns and has not 
been construed absolutely to exclude the use of less de- 
structive, primitive hand-operated missile weapons such 
as a bow and arrow, a sling, sticks or stones or the use 
of hands. 

See the definition of guns under section 185. 

Restrictions are made by some states as to the use 
of rifles particularly those of high power and it has been 
urged that the use of high power rifles for hunting, except 
in the territory where deer may lawfully be taken, be 
prohibited in this state. 



The Taking of Game Protected by Law 141 

Some of the states limit shot guns to those of ten 
gauge and a few allow the use of eight gauge guns. 

New Brunswick and Pennsylvania prohibit the use of 
automatic, but not the use of pump guns and rifles. 

In the case of Commonwealth v. McComb, 227 Pa. 377, 
the Pennsylvania statute was attacked and the court in 
holding the act constitutional stated: , 

" It is but a decent respect due to the wisdom, integrity and patriotism 
of the legislative body, by which any law is passed, to presume in favor 
of its validity, until its violation of the Constitution is proven beyond 
all reasonable doubt. A reasonable doubt must be solved in favor of 
the legislative action and the act be sustained. 

The preservation of game and fish has always been treated as within 
the proper domain of the police power and laws, limiting the season 
when birds and wild animals may be killed, and had for sale, and pre- 
scribing the manner in which they may be taken, have been repeatedly 
upheld by the courts. The duty of preserving the fish and game of a 
State from extinction, by prohibiting exhaustive methods of taking it, 
or the use of destructive instruments as are likely to result in the exter- 
mination of the young as well as the mature, is as clear as its power 
to secure to its citizens, as far as possible, a supply of any other whole- 
some food. 

It is within the province of the Legislature to prescribe the methods 
or instruments that may be used in taking game or fish and it is not 
unconstitutional for the Legislature of the state to forbid the use of a 
specially made gun such as the automatic. Nor are the courts con- 
cerned about a technical though trifling interference with the pleasure 
of a hunter, or the property interest of a gunmaker in deciding a 
question of public interest and welfare. 

The swivel gun referred to in the Act of 1897, is described as a small 
cannon, revolving to a swivel so that it may maim or kill a number of 
game at a single discharge, but it is always under the direction and 
control of the operator. The automatic gun mentioned in this act is 
described as ' one that is fired from the shoulder, and the recoil devel- 
oped by the exploded cartridge ejects the shell, cocks the hammer, and 
feeds in a fresh cartridge from a magazine into the chamber of the 
gun,' so that all that is required to discharge it is to pull the trigger. 
It is not necessary to justify the wisdom of the legislative enactment ; 
the whole question has so frequently been the subject of discussion in 
the Legislature and Courts, and we must accept it as a result of their 
deliberations, that the automatic gun is not a proper weapon for the 
killing of game, within this Commonwealth. Nor are the Courts con- 



142 Game Law Guide 

cemed about a technical though trifling' interference with the pleasure 
of a hunter, or the property interest of a gunmaker. Indeed, the source 
of the police power, as to ganae flows from the duty of the State to 
preserve for its people a valuable food supply." 

In connection with the decision in this case however 
it would occur to the law-abiding sportsman that the type 
of gun used makes little difference provided its user 
does not exceed the limit. 

The New Jersey statute prohibits the use of a shot 
gun or rifle holding more than two cartridges at one 
time or which may be fired more than twice without 
reloading. 

The Virginia act prohibits the use of more than one 
gun by any person hunting waterfowl. 

The use of silencers is prohibited in some of the states. 

The Penal Law, Section 1897a, provides as to 
silencers : 

"A person who sells or keeps for sale, or offers, or gives or disposes 
of, or who shall have or carry concealed upon his person any instru- 
ment, attachment, weapon or appliance for causing the flring of any 
gun, revolver, pistol or other firearms to be silent or intended to lessen 
or muffle the noise of the flring of any gun, revolver, pistol, or other 
firearms shall be guilty of a felony, punishable by imprisonment for 
not more than five years. 

This section shall not apply to the regular and ordinary transporta- 
tion of any instrument, attachment, weapon or appliance for causing 
the firing of any gun, revolver, pistol, or other fii-earms to be silent 
or intended to lessen or muffle the noise of the firing of any gun, 
revolver, pistol, or other firearms, as merchandise, nor to sheriffs, police- 
men, or to other duly appointed peace officers, nor to duly authorized 
military or civil organizations, nor when parading, nor to the members 
thereof when going to and from the place of meeting of their respective 
organizations in practice." 

See Section 192 prohibiting the use of dogs in hunting 
deer and Section 193 as to the use of dogs for other pur- 
poses in the Adirondack Park, Catskill Park and 
forests inhabited by deer. 



The Taking op Game Protected by Law 143 

There is nothing which allows the training of a dog 
afield during the close season except under the auspices 
of a duly organized association for the protection of 
game upon written permission from the Commission. 

A provision similar to that made by many of the states 
fixing a certain period of from two to three weeks prior 
to the open season, for instance, from August 15th to 
September 1st, during which the owner of a dog or a 
licensed trainer without carrying a gun may take him 
afield for trial has been suggested. 

The use of dogs in hunting protected game is alto- 
gether prohibited by the statute of South Dakota. 

The Pennsylvania statute declares that any dog run- 
ning at large during the close season and disturbing 
game may be killed by any person and shall be killed by 
a protector, unless the dog wears a collar and tag 
identifying the owner, and even such a dog, if found at 
large after notice to the owner, may be killed. The only 
exception made is that dogs accompanied by or under 
the control of their masters may be trained upon game 
birds and game animals except elk and deer from Sep- 
tember 1st to March 1st, so long as no injury is inflicted 
upon such animals or birds. 

It has been contended that the known owner or custo- 
dian of any dog thus collared and tagged should 
expressly be made liable by the Conservation Law for 
the dog's acts while running loose and disturbing game 
during the close season, as is the case in New Jersey and 
that ownerless dogs so running loose should be despatched 
however hard that may be upon the dog. 

Compare section 193. 

It is a fair question whether the owner of a dog is not 
now liable for the acts of such dog running loose par- 
ticularly after knowledge or notice and the safest course 
is to keep hunting dogs at home except when afield under 



144 Game Law Guide 

the direction of responsible persons, in order to avoid 
any possibility of penalty. 

All that has been said of dogs is doubly true of cats. 

The statutes of some states put bounties on certain 
quadrupeds not protected by law. 

The wearing of masks by persons hunting is pro- 
hibited by the Ontario statute. 

Compare section 710 of the Penal Law. 

The only restrictive provision as to the use of auto- 
mobiles is contained in Section 222-a : 

No person while in an automobile shall take game; nor by aid 
or use of any light or lights carried thereon or attached thereto. 

The Wisconsin statute includes motor cycles and all 
other vehicles. 

No quadrupeds protected by law can be taken with 
traps except as particular sections permit it specifically 
or under the clause " in any manner." 

Some of the states require trappers to visit their traps 
and to take any caught animals therefrom at least once 
in every twenty-four hours. 

The definitions of '' taking " and '' hunting " do not 
include the term '' attract " and for that reason there 
appears to be no restriction against advance feeding or 
baiting of wild animals unless forbidden by specific 
prohibition as in the case of deer. 

See section 190, subd. 3. 

Such acts are however generally prohibited by the 
statutes of some of the states. 



CHAPTER IX 



GAME QUADRUPEDS AND FUR-BEARING 
ANIMALS 

Quadrupeds protected by law or those for which a close 
season is provided can be taken only as permitted by 
Section 177, subdivision 1, except where special provision 
is otherwise made. 

See sections 176, 185, 158 and 159. 

They may be taken from their usual haunts wherever 
found except where special prohibition is made, such as 
against taking deer while in the water or digging ani- 
mals from holes. 

Such quadrupeds as bears, wolves, foxes, woodchucks, 
weasels, red squirrels, chipmunks and the like being 
unprotected by law may be taken in any manner and 
under any circumstances not dangerous to other game. 

One of the first permissive sections as to quadrupeds 
is Section 200 on the propagation of fur-hearing animals: 

All species of fur-bearing animals protected by this chapter 
may be kept alive in captivity at all times for pui-poses of propa- 
gation and sale only, provided a license so to do shall tirst have 
been obtained from the commission. Every' person obtaining' such 
license shall paj' the commission the sum of five dollars as a license 
fee. No fur-bearing animals shall be thus kept which are taken 
wild during the close season for such fur-bearing animals, and 
such fur-bearing animals shall not be disposed of in any way 
during the close season. 

See section 159, 

Section 200 must be read with Rules 27-30 inclusive : 

27. Each application for a license to engage in the business of propa- 
gation and sale of fur-bearing animals shall be accompanied by a satis- 
10 [145] 



146 Game Law Guide 

factory bond to the people of the state in the penal sum of five hun- 
dred dollars, conditioned that the applicant will not keep such fur- 
bearing animals which are taken wild during the close season for such 
fur-bearing animals and will not dispose of such fur-bearing animals 
in any way during the close season; that he will observe all of the 
prohibitions, restrictions and conditions imposed by the terms of the 
license to be issued and the provisions of section 200 of the conserva- 
tion law. 

28. If said bond is approved, and upon payment to it of a fee of 
five dollars, the commission shall issue to the applicant a license per- 
mitting him to keep fur-bearing animals under the provisions of said 
section for one year from a time therein stated, but no such license 
shall be issued to take effect during the close season. 

In order to authorize the continuance of such . licenses thereafter, the 
licensee shall renew said bond annually, and the fee for renewal shall 
be five dollars. 

29. No person purchasing fur-bearing animals from such licensee 
shall have them in possession during the close season, even though 
purchased during the open season, unless such person shall have a 
license under section 200 of the conservation law. 

See section 159. 

30. Any person violating the provisions of such bond, any rule or 
regulation of the commission or any of the provisions of section 200 
of the Conservation Law shall forfeit his license and shall be denied 
the privilege of giving another bond. 

DEER 
Game Quadruped 

There is no statewide open season for deer. 
The open season limited as to territory is prescribed 
in Section 190: 

1. Open season 

Only wild deer having horns not less than three inches in length 
may be taken from October first to November fifteenth, both inclu- 
sive, and in %vholly inclosed deer paries and in the counties of 
Clinton, Essex, Franklin, Fulton, Hamilton, Herkimer, Jefferson, 
Lewis, Oneida, Oswego, Saratoga, Saint Lawrence, Warren and 
Washington. 

See section 192. 

Does and fawns are protected. The socalled " buck 
law " has been condemned because of its failure to pro- 



Game Quadrupeds and Fur-Bearing Animals 147 

tect the doe, many of them being shot by mistake and 
left to rot in the woods, or to replenish the supply of deer, 
leaving too many does in proportion to the number of 
bucks. On the other hand, it has been vigorously sup- 
ported because of its claimed increase of the number of 
deer and especially its tendency to reduce the number of 
casualties from shooting during the deer season. These 
arguments and data in support of them are well set forth 
in the Saskatchewan Report of 1914, pages 15-19. 

■2. Limit 

A person may take two such wild deer in an open season, and 
the taker may transport, when accompanying the same, or possess 
for that purpose one carcass or part thereof at any one time, or 
he may transport the same as provided by section one hundred 
and seventy-eight. 

See section 178, chapter XIV. 

3. Manner of taking 

Wild deer may be taken only on land. No jacJcUght or other 
artificial light, trap, saltlick, or other device to entrap or entice 
deer, shall be used, made or set, nor shall any deer be taken by 
aid or use thereof. Deer shall not be hunted, pursued or killed 
by any dog of either sex. . 

Deer upon the land may be shot from boats upon the 
water. 

Each person engaged in hunting deer with a dog is 
separately liable for the penalty. 
People V. White, 124 A, D. 79. 

The above section contains the main exception to the 
permission granted by Section 177, subdivision 1, to 
take game with the aid of a dog. 
See section 193. 

§ 191. Possession of wild deer or venison 

Wild deer or venison lawfully taken may be possessed from 
October first to November twentieth, both inclusive. A person 
may possess such deer or venison from November twenty-first to 
February first, both inclusive, provided a license so to do shall 
first be obtained from the commission. Every person obtaining 
such license shall pay to the commission a fee of otie dollar. Deer 



148 Game Law Gtuide 

or venison so possessed shall at all times be marked or tagged in 
such manner as the commission may provide. If possession of deer 
is obtained for transportation after October first and before mid- 
night of November sixteenth, it may lavpfully remain in the pos- 
session of a common carrier the additional time necessary to 
deliver the same to its destination. Possession of deer or venison, 
or any part thereof, from November si-xteenth to February first, 
both inclusive, shall be presumptive evidence that the same was 
unlawfully taken. 

See section 181 on presumptive evidence. 
See section 372 on breeding, sale and transportation of 
domesticated deer. 

The philosophy of this section like others on posses- 
sion after open season is well set forth in the case of 
People V. Gerber, 92 Hun, 554. 

Rule 31 on the possession of venison reads as follows : 

Applications for a license to possess venison during any calendar 
year, pursuant to the provisions of section 191 of the Conservation Law, 
must be made and the license granted on or before November 20. 

The applicant shall at the time of filing his application for a license 
pay to the Commission a license fee of one dollar and such license shall 
be granted only to a person holding a hunting and trapping license. 

A license shall permit the person killing the deer to possess the same 
for consumption and not otherwise, from November 21 to February 1, 
both inclusive, provided that said deer or venison shall be tagged as 
follows : 

Each quarter of said deer shall be tagged with a tag to be furnished 
by the Commission. 

The Commission will also furnish with the license duplicate coupons 
which shall be filled out, signed and sworn to by the licensee; one 
coupon shall be attached to the deer and one coupon shall be filed with 
the Commission on or before November 24th of the same year; the 
tags shall be fastened and locked to each quarter and the coupon 
attached to said deer on or before November 24th next succeeding the 
date of killing. 

Wild venison cannot be sold. 

Wild deer are defined by Section 380, subdivision 11 : 

^' Wild deer " includes all deer not lawfully held in private 
ownership in a preserve wholly enclosed by a fence as provided 
by section three hundred seventy-two hereof. 



Game Quadrupeds and Fur-Bearing Animals 149 

§ 192. Deer, open season, special. 

Only wild deer having horns not less than three inches in 
length may be taken in Ulster county and in the towns of Never- 
sink, Coehecton, Tusten, Highland, Lumberland, Forestburg, and 
Bethel, and all that section of the towns of Mamakating and 
Thompson, lying south of the Newburgh and Coehecton turnpike 
. in Sulhvan county, and the town of Deerpark in Orange county' 
from November first to November fifteenth, both inclusive. 

§ 193. Dogs to be licensed 

No dog of either sex shall be taken into the Adirondack or the 
Catskill Park, or into forests inhabited by deer, or harbored or 
possessed therein, unless the owner shall first obtain a licence for 
such dog from the commission, and pay a fee of one dollar therefor. 
The license shall be issued by the commission in its discretion and 
under such rules and regulations as it may deem advisable and 
shall terminate with the calendar ijear in which issued. A metal 
tag marked with a number corresponding to the number of the 
license shall be issued with the said license, and shall be attached 
to a collar and shall be at all times worn by the dog so licensed. 

Dogs of either sex, licensed as herein provided, shall not run at 
large in the Adirondack or the Catskill Park or forests inhabited 
by deer, unaccompanied by the owner. 

Any act committed or done contrary to the provisions of this 
section, or the neglect to perform any duty pro^dded therein, shall 
be deemed a violation thereof for which the oioner shall be liable. 
Any person may and it shall be the duty of eveiy game protector 
to kill any dog of either sex pursuing or killing deer, and no action 
for damages shall be maintained against the person for such kill- 
ing. The prohibitions of this section shall not apply to dogs upon 
lands actually farmed or cultivated by the owner of such dog or 
within the limits of an incorporated village or town, or a "lom- 
munity having a resident population of not less than one hun- 
dred individuals. 

Section 380, subdivision 29, provides : 

For the purposes of this chapter a dog shall be deemed to be 
'' at large " when it is outside of the owner's residence or a fenced 
enclosure immediately surrounding or adjacent to such residence. 

In an action for the penalty it is not necessary to 
prove intent to violate the statute. Prior to the amend- 
ment of 1916, it was also held that no person, even on his 



150 Game Law Guide 

own lands situated within the defined territory, could 
hunt any quadrupeds or birds with a dog. 
People V. Redwood, 140 A. D. 814. 

Barring the exception now provided for and the com- 
pliance with the license requirement, the same proposi- 
tion still holds true. 

WILD MOOSE, ELK, CARIBOU AND ANTELOPE 
Gam© Quadrupeds 
§ 194. Wild moose; elk; caribou and antelope 

There shall be no open season for wild moose, elk, caribou and 
antelope; but they may be brought into the state for breeding pur- 
poses. The flesh or any portion of any such animal may be pos- 
sessed or transported by the owner thereof, provided such animal 
was killed by the owner thereof, in a private park within the 
state, and further provided that the provisions of section three 
hundred and seventy-two in so far as the same are applicable are 
in all respects complied with. 

Successful efforts to develop herds of these animals in 
the forest preserve are being carried on. 

See sections 372 and 373 on the breeding, sale and trans- 
portation of these animals. 
See sections 158 and 159. 

BLACK, GRAY AND FOX SQUIRRELS 

Game Quadrupeds 

1. Open season 

Black, gray and fox squirrels may be taken and possessed from 
October first to November fifteenth, both inclusive, except on Long 
Island, where they may be taken and possessed from November 
first to December thirty-first, both inclusive. No person shall take 
black, gray or fox squirrels within the corporate limits of any city 
or village. 

2. Limit 

A person may take five such squirrels, either all of one kind 
or partly of each, in one day. 

See ordinances of cities and villages. 

See section 222. 

See section 1425, subdivision 10, of the Penal Law. 



Game Quadrupeds and Fue-Bearing Animals 151 

Red squirrels and chipmunks are not protected, but the 
white squirrels come within the statute if in fact they 
are albino black, gray or fox squirrels. 

Squirrels cannot be sold. 

There is no provision for their possession after the 
close of the season as in the cases of venison, waterfowl, 
upland birds and shore birds. 

See section 181. 

See sections 158 and 159. 

HARES AND BABBITS 

Game Quadrupeds 

§ 196. 1. Open season 

The open season for varying hares and cottontail rabbits shall 
be from October first to January thirty-first, both inclusive, except 
on Long Island where the open season for varying hares and 
cottontail rabbits shall be from November first to December thirty- 
first, both inclusive. The use of ferrets is at all times prohibited, 
except that the commission may by resolution permit ferrets to be 
used in particular counties. The owners or occupants of inclosed 
■ or occupied farms and lands or a person duly authorized in writing 
by such owner or occupant may take except by use of ferrets in 
any manner at any time and in any number varying hares and 
cottontail rabbits which are injuring their property. Except in 
counties where the use of ferrets is permitted by the conservation 
commission the possession of ferrets afield shall be presumptive 
evidence of their illegal use. 

The counties in which the use of ferrets is by resolu- 
tion allowed are determined from year to year by the 
Commission. 

In Vermont the use of ferrets except to drive hares 
and rabbits from holes to be shot at with a gun, is pro- 
hibited. Wild hares and rabbits taken for the reason 
that they" are injuring property if taken during the close 
season, or if taken during the open season other than in 
compliance with Section 177, subdivision 1, cannot be 
used or disposed of for food purposes. 



152 Game Law Guide 

There is no provision for the possession of hares and 
rabbits after the close of the season. 

See section 181. 

See sections 158 and 159. 

2. Limit 

A person may take six varying hares or cottontail rabbits either 
all of one kind or partly of each in one day. 

3. Sale 

Varying hares and cottontail rabbits may be bought and sold 
during the open season for the taking thereof and when brought 
from without the state, may be bought and sold at any time and in 
any number. 

4. Breeding 

Varying hares and cottontail rahbits when bred in captivity may 
be bought and sold for food purposes during the close season 
therefor, provided a license so to do shall have first been obtained 
from the commission, upon the payment to it of a license fee of 
five dollars a year. Varying hares and cottontail rabbits so bred 
may be bought and sold for food purposes during the close season, 
provided the same shall first have been tagged with an indestruc- 
tible tag or seal which shall be supplied by the commission under 
such rules and regulations as it deems advisable. 

See Protective Orders. 

It is not necessary in an indictment or information to 
negative the force of the exception or proviso. The 
exceptions are matters of affirmative defense. 
People V. Chamberlain, 92 M'. 720. 

BEAVER 
Fur-'bearing Animal 
§ 197. No person shall take or possess beaver at any time or 
molest or disturb any wild beaver or the dams, houses, homes or 
abiding places of same, except as permitted in section one hun- 
dred and fifty-eight. 

See sections 159 and 200. 



Game Quadrupeds and Fue-Beaking Animals 153 



MINK, RACCOON AND SABLE 

Fur-bearing Animals 
§ 198. Mink, raccoon, and sable may be taken either in the day- 
time or at night and in any manner and possessed from November 
tenth to March fifteenth, both inclusive. 

See sections 158, 159 and 200. 

There is no express provision for the possession of 
pelts after the close of the season although those lawfully 
possessed may be bought and sold at any time. 

See sections 179 and 181. 

SKUNK 
Fur-bearing Animal 
§ 199. Skunk may be taken either in the daytime or at night 
and in any manner, but they shall not be taken from holes or dens 
by digging, smoking or the use of chemicals, and they may be 
possessed from November tenth to February tenth, both inclusive. 
Skunks which are injuring property or have become a nuisance 
may be taken at any time in any manner. 

See sections 158, 159 and 200. 
See sections 179 and 181. 

Skunks taken on the ground that they are injuring 
property or have become a nuisance may be taken by 
digging or the use of chemicals during either the open 
or close season, but the pelts of skunks, so taken shall not 
be possessed or sold. 

The pelts of skunks taken generally in any manner on 
the ground of nuisance during the close season cannot 
be sold, but they may be taken by the owner of the prop- 
erty in question or any person whom he authorizes. 

See People v. Chamberlain, 92 M. 720, on matters of 
affirmative defense. 

MUSKRAT 
Fur-bearing Animal 
§ 201. Muskrat may be taken in any manner, except as herein 
prohibited, day or night, and possessed from November tenth to 



154 Game Law Guide 

April twentieth, both inclusive. Muskrat houses shall not be 
molested, injured or disturbed at any time. The taking of musk- 
rats by shooting is prohibited. 

See sections 158, 159 and 200. 
See sections 179 and 181. 

This prohibition as to shooting muskrats is the only 
exception to Section 177, subdivision 1, as to taking game 
protected by law with a gun. 

As a general proposition, it has been held justifiable in 
defense of and to preserve property to kill wild fur- 
bearing animals protected by statute when the killing is 
done under a reasonable necessity. 

2 Cyc. 420. 

Ingliam on Animals, 571. 

But the pelts of such animals so killed during close 
season cannot be sold. 

LAND TURTLES 
Classed as Quadrupeds 

§ 202. Taking, killing or exposing for sale of all land turtles or 
tortoises, including the box turtle and the wood turtle, is hereby 
prohibited. 

The prohibition of this section does not apply to the 
common mud or snapping turtles nor does it apparently 
cover the common painted tortoise. 



CHAPTER X 



GAME BIRDS 

See Federal Regulations 

Grame birds can be taken only in compliance with Sec- 
tions 176 and 177, subdivision 1. 

They may be taken in compliance with law from their 
usual haunts and wherever found except where particular 
permissive sections restrict the circumstances of taking 
in that respect as for instance in the case of waterfowl. 

See section 211. 

For the purposes of the Conservation Law, the follow- 
ing onli/ are considered game birds as defined in Section 
210: 

The anatidae or water fowl, commonly known as geese, brant, 
swans and river and sea ducks; 

The rallidae, commonly known as rails, American coots, mud 
hens and gallinules ; 

The gallinae, or upland game birds, commonly known as wild 
turkeys, grouse, prairie chickens, pheasants, partridges and quail. 

The limicolae, or shore birds, commonly known as woodcock, 
snipe, plover, surfbirds, sandpipers, tatlers and curlews. 
Compare Federal Regulations. 

ANATIDAE OR WATER FOWL 
See Federal Regulations 

See sections 290 and 291, as to dams on the inland waters 
of the state. 

§ 211. 1. Open season 

Water fowl, wild and domestic, may be taken from September 
sixteenth to January tenth, both inclusive. They may be possessed 
from September sixteenth to January fifteenth, both inclusive. 
There shall be no open season for woodduck and swan. 

[155] 



156 Game Law Guide 

The Federal Eegulation 7 fixes the open season on 
water fowl, including coots and gallinules from Septem- 
ber 16th to December 30th, inclusive, except on Long 
Island and restricts taking, but not possession. 

See section 212. 

2. Limit 

A person may take during the open season, not to exceed twenty- 
five water fowl in the aggregate of all kinds in one day. When- 
ever two or more persons are occupying the same boat, battery or 
blind, not to exceed forty water fowl in the aggregate of all kinds, 
may be taken in one day by such persons. 

The Federal regulation prescribes no limit. Persons 
walking iip water fowl instead of using boat or blind may 
take twenty-five each in a day. 

The Ontario act provides that no person shall take 
more than two hundred wild ducks in any one year. 

The establishment of a day limit of not to exceed fif- 
teen water fowl to each person as is the case in Massa- 
chusetts on Mack ducks and of a season limit of not to 
exceed two hundred water fowl has been urged. 

3, Manner of taking 

Water fowl may be taken during the open season from the land, 
from a blind or floating device used to conceal the hunter (other 
than a sail or power boat) from a rowboat, when the same is 
within fifty feet of the shore or a natural growth of flags or in 
pursuit of vjounded birds. Flocks of ducks shall not be pursued 
in fresh water so as to drive them away from any neighborhood. 

No provision of the law has been subject to more dis- 
cussion and evasion than subdivision 3 of Section 211. 

There is no definition of land, but land cannot be con- 
strued to include ice or artificial as distinguished from 
natural formations of any kind resting or reaching more 
than fifty feet from shore or a natural growth of flag, if 



Game Birds 157 

any hide or device to conceal the hunter exclusive of 
clothing is used. 

The shooting from boats under power or sail is abso- 
lutely prohibited and shooting from a rowboat propelled 
by oars is limited to the fifty-foot from shore mark except 
when in bona fide pursuit of crippled ivater foivl. 

There is no prohibition against acts committed by a 
person on laud tending to scare up water fowl provided 
the acts are done between sunrise and sunset. 

The Wisconsin act prohibits the use by one person or 
two or more persons acting together, of more than 
twenty-five decoys the farthest out to be not more than 
two hundred feet from the hide or blind. 

There is nothing in the Conservation Law which 
expressly permits the use of either live bird or artificial 
decoys. But the use of decoys and their presence in the 
water before open season and between sunset and sun- 
rise have not been questioned. Nor has holding a place 
with decoys been challenged as a prohibited lesser act. 

Use of decoys has been claimed to constitute " attract- 
ing " rather than " taking." 

WATER FOWL ON LONG ISLAND 

See Federal Regulations 

1. Open season 

Water fowl on Long Island and the waters adjacent thereto may 
be taken from October first to January tenth, both inclusive. 

2. Manner of taking 

Water foivl may be taken by aid of any floating device other 
than sailboats or power boats, at any distance from shore on 
Long Island Sound, Shinnecock, Gardiner and Peconic bays, dur- 
ing the open season therefor, and except from October fi,rst to 
October nineteenth, both inclusive, in Great South Bay west of 
Smith's Point and east of the Nassau-Suffolk county line. 

Federal Regulation 7 fixes the open season as to water 
foivl on Long Island from October 1st to January 15th, 
inclusive. 



158 Game Law Guide 

RALLIDAE 
See Federal Regulations 
§ 213. 1. Open season 

Rails, American coots, mud hens and gallinules may be taken 
and possessed from September sixteenth to December thirty-first, 
both inclusive. 

2. Limit 

A person may take dnring the open season not to exceed fifteen 
of such birds in the aggregate of all kinds in one day. Whenever 
two or more persons are occupying the same boat or blind, not to 
exceed twenty of such birds shall be taken in the aggregate of all 
kinds in one day by such i^ersons. 

The Federal Regulation and the Conservation Law 
coincide on coots and gallinules, but on other rallidae 
the Federal Regulation fixes the open season from Sep- 
temher 1st to November 30th, inclusive. 

Rallidae cannot be possessed after the close of the 
season. 

The restrictions of Section 211, subdivision 3, do not 
apply to the hunting of rallidae. 

GALLINAE OR UPLAND GAME BIRDS 

Section 214 provides as to upland game birds as 
follows : 

Upland game birds may be taken as follows, and when so taken 
may be possessed during the open season therefor and for an addir- 
tional period of five days next succeeding the said open season : 

1. Quail 

There shall be no open season for quail before October first, 
nineteen hundred and eighteen. 

2. Grrouse or partridge 

October first to November thirtieth both inclusive. A person may 
take not to exceed four grouse or partridge in one day and twenty 
in the open season. 

Grouse are defined by Section 380, subdivision 12 : 

'' Grouse " includes ruffed grouse, partridge and every member 
of the grouse family. 



Game Bikds 159 

This definition would include capercailzie, ptarmigan, 
spruce grouse, blackcock, etc., which might reach this 
State from Canada, New Hampshire or elsewhere. 

3. Wild pheasants 

On the last two Thursdays in the month of October and the 
first two Thursdays in the month of November and possessed dur- 
ing the period of time between the first open Thursday in October 
and the last open Thursday in November, inclusive. Only wild 
male pheasants may be taken. A person may take and possess 
not to exceed three wild male pheasants in the open season. 

The introductory statement as to possession after 
close season governs subdivision 3 in that respect. 

See Protective Orders in force in the various counties 
of the State. Pheasants are defined by Section 380, sub- 
division 19 : 

"Pheasants" includes Hungarian dark-necked pheasant, ring- 
necked, commonly called English, Mongolian or Chinese pheasant. 

Silver and golden pheasants are not included. It has 
been contended that the taking of pheasants should be 
allowed from the 15th of October to the 15th of Novem- 
ber and that if not to exceed five should be fixed as the 
season limit, there would be no more pheasants taken 
than are killed as the statute now stands. 

4. Partridge 

There shall be no open season for Hungarian or European gray 
legged partridge. 

§ 315. Upland game birds on Long Island, special 

Quail, pheasants, and grouse may be taken on Long Island from 
November first to December thirty-first, both inclusive. A person 
may take not to exceed ten quail, six male pheasants and four 
grouse in any one day and fifty quail, thirty-six male pheasants 
and twenty grouse, in the open season on Long Island. 



160 Game Law Guide 

limicolae or shore birds 

See Federal Regulations 

■Section 216 provides as to shore birds : 

Shore birds may be taken as follows, and when so taken, may be 
possessed during the open season therefor and for an additional 
period of the five days next succeeding the said open season: 

1. Woodcock 

October first to November fifteenth, both inclusive. A person 
may take not to exceed four woodcock in one day and twenty in 
the open season. 

Federal Regulation 7 fixes the open season on wood- 
cock from October 1st to November 30th, inclusive. 

2. Snipe, plover, surf birds, sandpipers, tatlers and curlews 
September sixteenth to November thirtieth, both inclusive. A 

person may take not to exceed fifteen shore birds in the aggregate 
of all kinds in one day. Whenever two or more persons are occu- 
pying the same boat or blind not to exceed twenty-five shore birds 
may be taken in the aggregate of all kinds in one day by such 
persons. 

Federal Regulation 7 fixes the open season on black- 
breasted and golden plover and the greater and lesser 
yellowlegs from August 16th to November 30th, inclu- 
sive ; and on jacksnipe or Wilson snipe from September 
16th to December 31st, inclusive. 

By Federal Regulation 4 a closed season is continued 
until Septeynber 1st, 1918, on all shore birds, except black- 
breasted or golden plover, Wilson snipe or jacksnipe, 
woodcock and the greater and lesser yellow tegs. 

Wilson snipe and English snipe are deemed identical. 

The Federal Regulations protect absolutely until Sep- 
tember 1st, 1918, all shore birds not expressly excepted 
and it is important to remember that this federal protec- 
tion covers particularly the smaller shore birds, the 
kildeer and upland plover. 

The restrictions of Section 211, subdivision 3, do not 
apply to the hunting of shore birds. 



Game Birds 161 

Persons ivalhing up shore birds instead of shooting 
from blind or boat are entitled to fifteen birds each in 
a day. 

§ 217. Shore birds on Long Island, special 

Shore birds may be taken on Long Island as follows: 

1. Woodcock , 

October fifteenth to November thirtieth, both inclusive. 

2. Snipe, plover, surfbirds, sandpipers, tatlers and curlews 

August first to November thirtieth, both inclusive. 
11 



CHAPTER XI 



FISH 

See sections 152, 153, 155, 156, 366 and 159. 

In considering the subject of fish Section 176 at first 
glance apparently applies only to fish protected by law. 
The latter part of Section 176 

Nets except in the marine district, tip-ups, set and trap lines, 
spears, grappling hooks, naked hooks, snatch hooks, eel weirs and 
eel pots shall not be used to take fish except as specifically per- 
mitted in this article 

must be read in connection with Section 177, 
Subdivision 2: 

Fish, except mig'ratory food fish of the sea, shall only be taken 
by angling, unless otherwise specifically permitted by this article. 
In case any fish or Crustacea is unintentionally taken contrary to 
the prohibitions or restrictions contained in any of the provisions 
of this article, such fish, or Crustacea shall be immediately liberated 
and returned to the water, tvithout unnecessary injury. Whenever 
any fish under the size limit prescribed by the provisions of this 
article are received in transportation from another state or country, 
on whenever such fish, are taken in gill nets, they shall neither be 
sold, bought or otJterwise trafficked in. 

The general prohibition of Section 176 as to sale and 
other matters except taking applies only to fish protected 
by law. 

Advance baiting of fish is forbidden by the Maine 
statute as is also fishing for hire. 

The term fish is defined by Section 380, subdivision 6, 
as follows: 

'^ Fish " includes '' fish pi'i'otected by law," " fish protected by 
this article," and " food-fish." Whenever the words '^ fish protected 

[162] 



Fish 163 

by law " or "■ fish protected by th is article " are used, reference is 
had only to fish for which a closed season or size limit is provided. 
Whenever the words " food-fish " are used, reference is had to 
all species of edible fish. 

In connection with the question of size limit it is inter- 
esting to note that the statute of West Virginia requires 
the measurement to be made from the tip of the nose to 
the centre of tlie fork of the tail. 

Eule la further provides : 

Food fish, other than migratory food fish of the sea within the limits 
of the marine district, shall not be taken by any person in any manner 
other than by angling or in the manner expressly permitted by a license 
or permit duly issued by the Commission. 

For a definition of the marine district see Section 300. 

The above provisions constitute a blanket prohibition 
reinforced by other restrictive sections against the tak- 
ing of any fish other than migratory food fish of the sea 
within the limits of the marine district except by angling 
unless specific authority as to other particular forms of 
taking can be pointed out in particular permissive 
sections. 

Angling is defined by Section 380, subdivision 20 : 

"Angling " means taking fish by hooh and line in hand or rod 
in hand; or if from a boat not exceeding two lines with or without 
rod to one person. 

This definition has not been construed to prevent the 
use of more than one Jiook on a line or to prohibit the 
use of gangs of hooks upon artificial lures. 

The Iowa act prohibits the use of more than one hook 
on a line except in case of artificial lures upon which 
one gang of not to exceed three hooks is used. 

Only one line or rod may be used on land or other than 
from a boat and it must be in hand. Only two lines or 
rods or one of each to each person may be used from a 



\ 



164 Game Law Guide 

boat. Any other use of a line or rod or tlie use of any 
additional line or rod constitutes the same a set line. 

The rule as to the one line or rod in hand other than 
from a boat has usually been liberally construed and no 
question has been raised where the same has been per- 
sonally attended though not actually in hand. 

The use of landing nets to land angled fish is per- 
mitted by Section 275, but there is no provision allowing 
the gaffing or shooting of angled fish no matter how large 
their size. 

In contrast to the definition of angling is that of 
hooking contained in Section 380, subdivision 21: 

" Hooking " is defined to mean taking or attempting to take 
fish not attracted hy bait or artificial lure, by snatching with hooks, 
whether baited or unbaited, gangs or similar devices. 

See sections 255 and 255a. 

Fish which are to be taken by angling only cannot be 
taken deliberately by hooking. 

The only angling license required up to the present is 
that exacted from certain non-residents in certain cases 
pursuant to Section 188 already referred to in Chapter V. 

The only rule as to not fishing from sunset to sunrise 
is that applicable to netting and the hauling of similar 
devices. 

See section 273. 

There are several important specific prohibitions as 
to fishing (reinforcing Section 176 and Section 177-2 and 
at this point it is important to note that the term inhab- 
ited whenever used means a permanent occupancy of a 
species as contrasted with a temporary presence of an 
occasional fish, and that the term trout means brook- 
trout as defined by Section 380-13. 

Section 380, subdivision 24, 

See People v. Tanner, 128 N. Y. 416. 



Fish 165 

One of the first auxiliary prohibitions is that contained 
in Section 242 against stocking private waters with 
certain fish taken from the waters of the State : 

Trout or lake trout shall not be taken from any of the waters 
of the state for the jourposes of stocking private ponds or streams. 
Provided, however, that any person desirous of aiding the state in 
the propagation and distribution of trout, may on approval of 
the commission, take trout eggs from trout in public waters for 
breeding purposes and such trout shall be returned to the waters 
from which they were taken. Before permission is given, or trout 
taken as herein provided, the applicant shall show conclusively 
that he has facilities for breeding trout, and must execute a 
satisfactory bond to the people of the state, to be approved by the 
commission, conditioned that he will not sell, give away, convert 
to his own use, or otherwise dispose of any trout, or eggs taken 
under said permit, and will return the young trout to public waters 
at such times and places as the commission may designate. 

This section is not to be interpreted as preventing the 
necessary removal of fish endangered in time of drought 
from one stream to another or the keeping for propaga- 
tion purposes, in compliance with Section 159, of fish of 
legal size caught during the open season in a legal 
manner. 

Another prohibition is that against disturbing certain 
fish while spawning contained in Section 243 : 

Bass, trout and lake trout on spawning beds in the close season 
shall not be disturbed, nor shall their spawn or milt be taken from 
the spawning beds except as provided by the preceding section, 
. and section one hundred and fifty-five. 

Another restriction is that against the use of 
explosives contained in Section 245 : 

Fish shall not be taken by means of explosives. Except for 
mining or mechanical purposes, dynamite or other explosives shall 
not be used in any of the waters of this state, or possessed upon 
the waters, shores or islands thereof. Possession thereof by any 
person on the waters, shores or islands thereof, of this state shall 
be presmnptive evidence that the same is possessed for use in 
violation of the provision of this section. 



166 Game Law Guide 

The Commission may allow the use of dynamite in 
efforts to recover bodies under such restrictions as it 
sees fit to impose. 

A further restriction is that against obstructing 
streams set forth in Section 246 : 

Except as provided in section two hundred and -fifty-six or as 
directed by the commission, no person shall by means of any rack, 
screen, weir, or other obstruction in any creek, stream or river, 
prevent the passage of fish. The commission may order such an 
obstruction to be removed by the person erecting the same or by 
the owner of the land on which the same is located. A copy of 
the order shall be served on such person or owner. Failure to 
comply with the terms of such order within ten days after service 
of the same shall be deemed a violation of this section. 

See sections 22, 290 and 291. 
The pollution of streams is prohibited by Section 247 : 

No dyestuffs, coal tar, refuse from a gas house, cheese factory, 
creamery, condensary or canning factory, sawdust, shavings, tan- 
bark, lime or other deleterious or poisonous substance shall be 
thrown or allowed to run into any maters, either private or public 
in quantities injurious to fish life inhabiting the same, or injurious 
to the propagation of fish therein. 

Under the statute as it formerly stood, pollution 
before it became punishable had to be rank enough to 
be destructive of fish. 

People V. La Bell, 128 A. D. 709. 

Injunctions may be had against pollution and damages 
recovered therefor. 

New York v. Blum, 208 N. Y. 237. 

Hodges V. Pine Products Co., 68 S. E. 1107 (Ga.). 

Commonwealth v. Kennedy, 47 L. R. A. 673 (Pa.). 

See sections 360-366. 

See section 1425 of the Penal Law, subdivision 12. 

See State v. Haskell, 34 L. R. A. 286. 



Fish 167 

Pollution of hatchery waters is prohibited by Section 

248 : . ji 

No person shall erect or maintain any privy, waiercloset, pigsty, 
hogpen, inclosure for poultry, barn or barnyard in which animals 
or poultry' are kept, or drain from any building or the cellar 
thereof, where drainage or refuse therefrom will flow into or find 
its way into water used by any fish hatchery operated by the state, 
or into any pond, creek or stream used in connection therewith. 
Every such privy, watercloset, pigsty, hogpen, enclosure, bam, 
barnyard and drain is hereby declared to be a public nuisance, 
and may be summarily abated by the commission. No person shall 
place seivage or other matter injurious to fish where the same can 
find its way into the water used by any fish hatchery operated by 
the state, or suffer the same to be done from, over or through 
premises owned or occupied by him. , 

Draiving or shutting off water to take fish is forbidden 
by section 249 : 

No person shall take fish by shutting or drawing off water for 
that purpose. No person shall hold back or divert the water in 
any stream which supplies a state hatchery so as to prevent the 
necessary flow of sufficient water for hatchery purposes. 

No person except under authority of the commission shall take 
fish from the waters of any fish hatchery. 

Restrictions are made by Section 250 as to the placing 
of certain fish in certain waters : 

Fish or eggs thereof other than trout, lake trout, frostfish, white- 
fish and smelt, shall not be placed in any waters of the state 
inhabited or stocked with trout. No person shall put or place in 
any public waters of the state fish commonly Icnown as carp, nor 
shall any person jiut or place in such waters the spawn of such 
fish or use such fish as bait in the water thereof. Whenever the 
conservation commission shall determine that any waters of the 
state heretofore inhabited or stocked with trout are no longer 
inhabited by trout or are unsuitable as trout waters, the commis- 
sion may make an order permitting such waters to be stocked with 
any species of fish in addition to trout, lake trout, frostfish, white- 
fish or smelt, or the eggs thereof. 



-&&■ 



There is no restriction against the stocking of private 
non-trout waters with carp. 

See section 1425, subdivision 12, of the Penal Law. 



168 Game Law Guide 

Fishing near dams and fisJnvays erected by the State 
in public waters is prohibited by Section 251 : 

The comnjission may maintain fifty rods from any dam or fish- 
way erected by the state in public waters, on both sid^s of the 
stream above and below the fishway or dam (as the ease may be) 
signboards containing substantially the following notice : " Fifty 
rods to the fishway or dam (as the case may be) ; all persons are 
prohibited by law from fishing in this stream between this point 
and the fishway or dam" (as the case may be). No person shall 
take fish within fifty rods of any fishway or dam posted with sign- 
boards as provided in this section. 

The taking of fish through the ice in certain waters is 
prohibited by Section 252: 

No person shall take fish through the ice in waters inhabited by 
trout unless an order specifying the waters and fixing the season 
shall first be made by the commission. 

If the waters are not trout waters any fish during the 
open season therefor may be taken by angling. Fishing 
in the open water surrounded by ice is not fisliing 
through the ice. 

Following the foregoing prohibitive provisions are 
certain permissive sections. 

The use of tip-ups is regulated by Section 253 : 

Tip-ups may be used, for fishing through ice except in waters 
inhabited by trout, to take bullheads, catfish, eels, perch, sunfish, 
and except during the montlis of March and April, pikeperch, pike 
and pickerel. No person shall operate or control at the same time 
more than fifteen tip-ups. All tip-ups must be marked with the 
name and address of the owner thereof. 

See Protective Orders. 

There is no restriction as to the use of live bait as 
in the case of set lines and no license is required. Only 
the fish mentioned may be so taken. 



Fish 169 

The use of set lines^ and trap lines is covered by 
Section 254 : 

Set lines may be used except in waters inhabited by trout to 
take wliitefish, bullheads, catfish, eels, perch, sunfish, carp, mullet 
and dogfish, provided an order specifying the waters and fixing the 
season shall first be made by tlie commission. Set and trap lines 
may be used to take sturgeon in any waters during the open sea- 
son therefor, provided a license for so doing shall first be obtained 
from the commission. 

Rules 17 and 18 on set lines read as follows : 

17. Bait lines or trap lines to take sturgeon shall not exceed 1,200 
feet in length and the bait lines shall use Number 8-0 hooks set not 
less than two feet apart and be anchored on the bottom; trap lines 
shall use Number 10-0 hooks, set not less than six inches apart and 
be anchored not over three feet from the bottom. Each bait or trap 
line shall have attached to one end thereof a buoy which shall be above 
water and in plain sight at all times; each buoy shall have attached 
thereto a tag, issued by the Commission, upon which shall be stamped 
a number corresponding with the number on the license. 

18. Set lines other than sturgeon lines shall not be more than 
500 feet in length nor contain more than 300 hooks; one end shall be 
attached to the shore and the other end thereof shall be anchored to 
the bottom; it shall not be lawful for one person to own or operate 
more than one such line; nothing but dead bait shall be used for bait; 
no fish other than the kind mentioned in section 254 of the Conser- 
vation Law shall be taken with such lines. 

The force of the limitation of Rule 18 and Sections 
176 and 177, subdivision 2, was lost sight of in the case 
of People V. Keenan, 80 M. 539, where it was held that 
blue pike could be lawfulh^ taken with a set line. 

See People v. Tanner, 128 N. Y. 416. 

The license fee for sturgeon lines is $1.00. 

A license is required for other set lines and the fee 
is $1.00. 

The use of worms, and any dead bait except dead 
minnows, is allowed. 



170 Game Law Guide 

Spearing, etc., are regulated by Section 255 : 

Spears, grappling hooks, naked hooks or snatch hooks may be 
used, except in waters inhabited by trout, for taking white fish, 
mullet, carp, catfish, dogfish, bullheads, suckers and eels at any time, 
provided an order specifying the waters and fixing the season shall 
first be made by tbe com m ission. 

No license is required. 
See section 255a. 

Section 255a further jDrovides as to snatch-hooks 

Suckers, mullet, carp, bullheads and eels may be taken by snatch- 
hooks only in any stream in the state at any point in such stream 
not less than five miles below the source thereof, between November 
first and April thirtieth, both inclusive. In taking such fish under 
the provisions of this section, driving shall be permitted. The 
requirements, prohibitions, conditions and exceptions prescribed 
by sections ixvo hundred and fifty-tivo and two hundred and fifty- 
five of this chapter shall not apply to the taking of fish described 
in this section with snatch-hooks within the times herein prescribed. 

Spearing in the Niagara river is governed by a second 
Section 255a : 

1. Fish excepting trout, black bass, pickerel and maskalonge 
may be taken in the Niagara river between the lower steel arch 
bridge and the suspension bridge at Lewiston Heights with spears, 
at any time during the open season for such fish. No such fish, 
however, shall be taken of a size less than that prescribed by this 
chapter. 

2. Every person, before taking fish with a spear as herein pro- 
vided, shall obtain a license therefor from the town or city clerk 
of the town or city in which he resides. Such town clerk shall 
be entitled to receive a fee of one dollar for issuing such license 
to be disposed of in the manner provided by subdivision four of 
section one hundred and eighty-five of this chapter. 

Compare section 188. 

The use of eel weirs and pots is prescribed in Section 
256: 

Eel weirs and eel pots of such form as may be prescribed by 
the commission may be used at any time for taking eels, provided 



Fish 171 

a license for so doing shall first be obtained from the commission. 
Eel weirs shall not be used in waters inhabited by trout. This 
section shall not apply to waters of the marine district. 

For a definition of the marine district, see section 300. 

Rules 14, 15 and 16 as to eel weirs and pots provide 
as follows : 

14. Eel pof.s must not be more than 6 feet long, nor more than 
12 incites square, if in square form. The aperture or mouth of any 
eel pot shall be not more than 1 1/2 inches in its greatest diameter. 
There shall be no fixtures or wings of any kind attached to or used 
in connection with eel pots. 

15. For the jiurposes of these rules an eel weir shall consist of not 
to exceed two wings or leaders fastened to an eel trap; no eel trap 
shall have attached thereto more than one weir; the length of each weir 
shall be determined by the commission or person designated by it; 
and the use of weirs of a greater length than that specified in the 
license is prohibited. 

16. Eel weirs and eel pots shall not be constructed, set or used in 
any manner so as to unduly obstruct the natural flow of water or 
interfere with the free passage of boats. The use of eel weirs, the 
laths of which are less than 1 inch apart, is prohibited. 

Each eel weir or eel pot shall have attached thereto a tag, issued 
by the commission upon which shall be stamped a number correspond- 
ing with the number on the license. All fish, except eels, taken in an 
eel weir or an eel pot, must be immediately returned to the water. 

The license fee for each eel pot is $3.00 and for each 
eel weir with trap attached, $20.00. 

See Rule 13. 
The taking of frogs is regulated by Section 257 : 

Bullfrogs, green frogs, and spring frogs may be taken in any 
manner, possessed, bought and sold from June first to March 
thirty-first, both inclusive. They shall not be taken, possessed, 
bought or sold at any other time. 

Frogs are the only animals listed as fish which may be 
taken with a gun. 

See section 185 as to hunting license. 



172 Game Law Guide 

It has been urged that frogs in springs should be 
protected during the winter months. 

The taking of minnows is governed by Section 230 : 

No person shall take minnows for bait with a net, trap or seine 
or sell minnows so taken wibhout having first obtained a license 
so to do from the commission. Provided, however, that no license 
shall be required from a person to take minnows for Ids own use 
and not for sale. Minnows shall not be taken within one hundred 
feet of any dock, pier or boat landing structure along the Saint 
Lawrence river without the consent of the owner thereof, nor shall 
they be taken with a net, trajD or seine in waters inliabited by trout. 

Rules 19 and 20 apply to the taking of minnows for 
sale or for personal use : 

19. Eaoh application for a license to take minnows for bait for sale 
shall be accompanied by a satisfactory hand in the penal sum of two 
hundred dollars, signed by the applicant and two sufficient sureties. 

20. Black bass, maskalonge, white fish, pickerel, pike, pikeperch, 
lake trout, striped bass, yellow perch, shad and bullheads, taken in a 
net used to take minnows for bait shall be immediately returned to 
the water uninjured. 

No net more than twenty-five feet long shall be used for taking 
minnows for the owner's personal use. 

Minnows cannot be taken in waters inhabited hy trout 
either with a licensed or unlicensed net. 

Keport of Attorney-General, 1903, page 371. 

Minnows can be taken in trout waters by angling only. 

Persons interested in taking minnows should ascertain 
what streams are stocked with and inhabited by trout. 
Waters suitable therefor and stocked with trout are 
presumptively inhabited by them. 

There appears to be no restriction against the sale of 
minnows taken other than with nets, trap or seines. 

See section 176. 

See Rule 13 as to license fee for minnow nets, and see 
Netting Rules generally. 



Fish 173 

It seems such a license may be operated under by the 
licensee, a person in his employ or a person, under his 
immediate supervision. 
See Rule 6. 

It is important to note as to the fish referred to in the 
sections to follow that no provision is made for their 
possession after the close of the season. 
See section 181. 

BASS 
Game Fish 
§ 231. 1. Open season 

Black hass not less than ten inches in length may be taken and 
possessed from June sixteenth to November thirtieth, both inclusive. 

2. Size of catch 

A person may take not to exceed fifteen such black bass in one 
day, but whenever two or more persons are angling from the same 
boat they may take not to exceed twenty-five in one day. 

Black bass are defined by Section 380, subdivision 15 : 

"Black bass " includes Osivego bass. 

See sections 241a and Protective Orders under section 152, 
chapter IV. 

TROUT 

Game Fish 
§ 232. 1. Open season 

Trout not less than six inches in length may be taken and pos- 
sessed from the first Saturday of April to August thirty-first, both 
inclusive. 

2. Size of catch 

A person may take not to exceed ten pounds of trout in one day. 
See Protective Orders. 

Trout are defined by Section 380, subdivision 13 : 

" Trout " includes speckled trout, brown trout, rainbow trout, 
red-throat trout and brook trout. 

See section 371, on trout raised in private hatcheries. 



174 Oame Law Guide 

The New Jersey act fixes tlie limit on trout by number 
at Uventy-five to each person and it has been recom- 
mended in the interests of the smaller trout that the limit 
in this State be based upon number rather than weight. 
This obviates any question as to the last fish caught and 
kept. Suggestions have also been made to the effect 
that all native trout under seven inches and all rainboiv 
trout under nine inches be protected. 

It is perhaps of interest to note that the socalled 
speckled or native trout is not strictly speaking a trout, 
but a char, a salmo, the salvelinus fontinalis. 

Section 233 making special provision as to trout on 
Long Island was repealed by Chapter 508 of the Laws of 
1913. 

It has been urged that the taking of trout after pro- 
nounced dark and before daylight should be prohibited 
as it was temporarily in 1908. This would not interfere 
with dusk and dawn fly-fishing and would have a tend- 
ency to block illegal night practices. It has also been 
urged thctt in waters inhabited by trout no fishing during 
the close seacon on trout, be permitted. 

Bass and wild trout are above all others properly 
entitled game fish for the reason that they can be taken 
only by angling and can neither be bought nor sold. 

LAKE TROUT AND WHITEFISH 
§ 334. 1. Open season and size limit 

Lake trout not less than fifteen inches in length and whitefish 
not less than one and three-quarters pounds in the round may be 
taken and possessed from April first to September thirtieth, both 
inclusive. 

2. Otsego whitefish, commonly called Otsego bass, not less than 
nine inches in length may be taken and possessed from January 
first to October thirty-first, both inclusive. 

The so-called silver bass is neither a bass nor a white- 
fish. 



Fish 175 

3. Size of catch 

A person may take by angling not to exceed ten lake trout in 
one day, but whenever two or more persons are angling from the 
same boat they may take not to exceed fifteen in one day. White- 
fish may be taken in any number or quantity. 

4. Sale of 

Such lake trout and ivhitefish may be bought and sold during 
the open season therefor. 

See sections 235 and 241a. 

As to netting lake trout and whitefish, see Section 271. 
Lake trout are defined by Section 380, subdivision 14 : 

" Lake trout " for the purposes of this article includes land- 
locked salmon and ouananische. 

Section 235. Lake trout and whitefish may be taken in Lakes 
Erie and Ontario in any number or quantity at any time, and 
when so taken may be possessed, bought and sold, provided that 
every person to whom a license is issued to take such fish with a 
net or nets operated from power boats shall, when required by the 
commission, furnish without charge to the commission eggs and 
milt from such fish taken by him during the spawning season. 
Such eggs and milt shall be taken by the commission for propa- 
gation only and shall be taken from the fish by the agents of the 
commission. The person to whom such license is issued may be 
required by the commission to give a bond with sufficient sureties 
ai3proved by the commission conditioned that he will furnish such 
eggs and milt as aforesaid and pennit the agents of the commis- 
sion to be present in any such boat at the time of the taking of 
such fish for the purpose of taking such eggs and milt and con- 
ditioned that he will not hinder or delay such agent in the per- 
formance of such duty nor in the landing of such eggs and milt 
from said boat in good order. 

Lake trout not less than fifteen inches in length and white fish 
not less than one and three-quarters pounds in the round taken 
without the state may be imported into this state at any time and 
when so imported may be possessed, bought and sold. 

PIKE PERCH 

§ 236. 1. Open season, size limit and sale of 

Pike perch not less than twelve inches in length may be taken, 
possessed, bought and sold in any number or quantity from May 
thirtieth to March first, both inclusive. 



176 Game Law Guide 

2. Blue pike perch and saugers, of any size may be taken at 
any time and in any number or quantity in Lakes Erie and 
Ontario and in the lower Niagara river, and when so taken may 
be possessed, bought and sold. 

See section 241a and Protective Orders. 

Pike perch are defined by Section 380, subdivision 17 : 

" Pike perch " includes walleyed pike, commonly called pike, 
and yellow pike. 

As to netting pike perch, see section 271. 

YELLOW PERCH 

§ 336a. 1. Yellow perch may be taken and possessed, in any 
number or quantity, from the waters of Cazenovia lake, Otisco 
lake, Skaneateles lake. Cross lake, Onondaga lake and Jamesville 
reservoir, only between the first day of May and the first day of 
March, both inclusive. 

2. Such yellow perch may be bought and sold during the open 
season therefor. 

Subdivision 1 is a restriction as to the waters named 
only and does not constitute perch protected by law. 
Perch generally may be bought and sold. 

As to netting perch, see section 271. 

PICKEREL AND PIKE 

§ 237. 1. Open season 

Pickerel and pike in any number or quantity may be taken and 
possessed from May first to March first, both inclusive, except as 
herein provided. 

2. Limit 

In the Saint Lawrence river a person may take in one day not 
to exceed tivelve great northern pike, locally known as "pickerel" 
not less than twenty inches in length. 

3. Sale of 

Such pickerel and pike may be bought and sold during the open 
season therefor. 

See section 241a and Protective Orders. 



Fish 177 

Pickerel and pike are defined by Section 380, subdi- 
vision 16: 

" Pickerel " and ^' pike " include the great northern pike com- 
monly called pickerel, pond pickerel, chain pickerel, grass pickerel 
and banded pickerel. 

As to netting pickerel and pike, see section 271. 

STURGEON 

§ 238. 1. Open season and size limit 

Shortnosed sturgeon not less than twenty inches in length may 
be taken and possessed from Jidy first to April thirtieth, both 
inclusive, in any number or quantity. Lake sturgeon not less than 
thirty inches in length, and sea sturgeon not less than four feet 
in length may be taken and possessed in any number or quantity 
at any time. 

2. Sale of 

Such stxirgeon may be bought and sold during the open season 
therefor. 

MASKALONGE 

§ 239. 1. Open season and size limit 

Maskalonge not less than twenty-four inches in length may be 
taken and possessed from June sixteenth to December thirty-first , 
both inclusive, in any number or quantity. No person shall take 
maskalonge through the ice. 

2. Sale of 

Such maskalonge may be bought and sold during the open 
season therefor. 

Section 271 does not provide for netting maskalonge. 

STRIPED BASS 

§ 240. Striped bass not less than twelve inches in length may 
be taken by angling and with nets and possessed and sold in any 
number or quantity at any time. 

See section 271, as to netting striped bass. 

SMELT 

§ 241. 1. Open season and size limit 

Smelt or ieefish not less than six inches in length may be taken 
from the inland waters of the state and in Lake Champlain in 

12 



178 Game Law Guide 

any number or quantity at any time. Smelt or icefish of any size 
may be brought from tvithout the state or taken within the marine 
district. 

2. Possession and sale of 

Such smelt or icefish may be possessed, bought and sold at any 
time. 

Special open seasons as to Lake George are provided 
for by Section 241a : 

The open seasons for taking fish in the waters of Lake George, 
in any part thereof, shall be as follows : Lake trout from May 
first to October first, both inclusive; pike perch, pickerel, great 
northern pike, from June sixteenth to December thirty-first , both 
inclusive; bullheads from July first to December thirty-first, both 
inclusive; black bass from August first to December fifteenth, both 
inclusive. 



CHAPTER XII 



NETTING 



The differences between anglers and net fishermen 
will probably never be reconciled. No net, except the 
trammel net for catching carp only, would be permitted 
in the inland waters of the State if the average angler 
had his way. 

On the contrary, pet fishermen naturally favor the 
catching with nets and the sale of all kinds of fish. 

Anglers who oppose the angling license are in a poor 
position to criticise the netting provisions and are not to 
be heard as against the tax-paying, non-fishing public 
which wants fresh water fish for food and insists that 
those who are disposed to catch and sell them be reason- 
ably allowed to do so. 

The application of the sections on netting is limited by 
Section 280: 

The provisions of part VIII of this article, except sections two 
hundred and eighty-two and two hundred and eighty-three, shall 
only apply to the taking of fish from Lakes Erie and Ontario, the 
Hudson river north of Verplanck's Point and the inland waters 
of the state. 

Compare section 300. 

The most important prohibition against the use of nets 
is that contained in Section 275 : 

In waters inhabited by trout the use of nets of any kind is 
prohibited. This prohibition shall not apply to landing nets used 
to land fish duly hooked by angling or to use of nets by the com- 
mission as provided in section one hundred and fifty-five of this 
chapter. 

[179] 



180 Game Law Guide 

An important prohibitive provision as to netting is 
that contained in Section 244 on thumping: 

Sailing, rowing, pushing or floating in any boat or vessel in a 
waterway, river, run or channel, bay or sound, or patrolling the 
banks of such waterway, river, run or channel, bay or sound, and 
stamjiing, jumping, shouting, pounding, beating or splashing the 
water, beating the banks, or boat while a seine or net is set, drawn, 
water, beating or pounding the banks, or boat while a seine or net 
is set, drawn, held, or used in such waterway, river, run or chan- 
■ nel, bay or sound, with intent to drive fish into such seine, or net, 
which acts are commonly known as thumping, are hereby for- 
bidden. 

Nets are defined by Section 380, subdivision 25 : 

" Nets " includes seines, gill nets, pound nets, trap nets, scap nets, 
fyke nets, dip nets, scoop nets and stake nets. 

The trammel net does not appear to be included. While 
it is essentially a seine, it was held in Rowe v. State, 83 
Arkansas, 245 that a trammel net was not a seine. 

In People v. McMasters, 74 Hun, 226, a person trolling 
and hooking into a net containing fish, by appropriating 
and taking the fish ashore was held liable for the penalty. 

Nets are to be licensed as provided in Section 270 : 

Unless otherwise provided by this article, seines, gills, fykes, 
pounds, traps, scaps and other nets or devices may be set or used 
in any of the waters of the state provided a license so to do shall 
be first obtained from the commission. Rules regulating the use 
of seines, gills, fj^kes, pounds, traps, scaps and other nets or 
devices in any of the waters of the state, and providing for the 
licensing of such, nets together with a license fee therefor, may 
from time to time be prescribed by the commission when not incon- 
sistent with law and such rules shall be filed in the office of the 
commission. 

See sections 230 and 275. 

See section 279 as to nets in the Hudson and Delaware 
rivers. 

The general power of the Commission to revoke net- 
ting licenses was upheld by the Attorney-General's 
Report, 1900, page 251. 



Netting 181 

The establisliment of properly certified and authenti- 
cated rules as to the use of nets was held in Josh v. Mar- 
shall, 33 A. D. 77 to be a condition precedent to the obli- 
gation of a net fisherman to procure a license. 

Rules 1 to 13 on nets are as follows: 

1. No nets of any kind shall be set or used for the taking of fish in 
Lake Erie or Lake Ontario or the inland waters of the State, or in the 
Hudson River south of Verplanek's Point, for the taking of fish other 
than migratory food fish of the sea, without a license so to do granted 
by the Conservation Commission. 

la. Food fish, other than migratory food fish of the sea witliin the 
limits of the marine district, shall not he taken by any person in any 
manner other than by angling or in the manner expressly permitted 
by a license or permit duly issued by the Commission. 

2. No license shall be granted except upon written application made 
upon blanks to be furnished by the Commission and signed and sworn 
to bj' the applicant. 

All applications for licenses must be endorsed by two responsible 
persons. 

The application shall specify the size of the bar and the kind and 
size of the net to be used together witli the length of the wings and 
leaders. 

The Commission sliall determine and fix the size of nets and the 
length of the wings or leaders to be used. 

The Commission may refuse to grant a license to any pei*son for 
any reason which to it maj^ seem sufficient. 

Each application shall be accompanied by a satisfactory bond signed 
by the applicant and two sufficient sureties in an aggregate penal sum 
equal to one hundred dollars for each net specified in the license but 
not exceeding three hundred dollars; each application for a boat license 
shall be accompanied by such a bond in the i^enal sum of five hundred 
dollars. 

Failure to return to the Commission at the expiration of a license, 
tags, issued bj' it, or to make the report required by rule twelve hereof 
is sufficient cause for denying an application for a license. 

3. All licenses for nets shall be granted pursuant and subject to these 
rules and regulations. 

4. Only such nets, to the number and of the size of the bar, with 
leaders and wings, of the length mentioned, shall be used as are speci- 
fied in the license; the license shall specify the kind of nets to be used 
and the duration of the license; licenses shall be granted for no longer 
than one year; all licenses granted during the year will expire on the 



182 GrAME Law Guide 

thirty-first day of December following unless an earlier date is specified ; 
nets shall be used only during and at the times specified in the license. 

5. The Commission may revoke any license granted hereunder at 
any time for any reason which to the Commission may seem sufficient. 

6. A license issued pursuant to these rules is not transferable and if 
a licensed net be used by any person other than the licensee or a person 
in his employ, or under his immediate supervision, it shall be deemed 
forfeited, revoked and cancelled. 

7. Nets shall be set or used only in the waters mentioned in the 
license; the setting and hauling of all nets in those waters shall at all 
times be under the direct supervision and control of the Conservation 
Commission or person designated by it, who shall have the power to 
designate the location of all nets; such location once fixed shall not be 
changed without the written authority of said Commission or person. 

No net licensed under a seine license shall be staked, anchored or 
otherwise fastened while in the water unless specifically permitted in 
the license. 

8. The Commission shall issue with each licensed net a tag upon 
which shall be stamped a number corresponding with the number or 
numbers on the license. Such tag must be attached to the net when 
in use in such manner that it will be on the top of or above the water 
and in plain sight at all times. 

9. The owner of each licensed boat on Lake Erie or Lake Ontario 
shall at all times have his license in plain sight, aboard said boat. Each 
licensee must exhibit his license when requested by any game protector 
or by any peace officer of tliis State or by any person designated by 
the Commission. 

10. The bar of all nets used under any license, except to take 
minnows for bait, shall be as follows : 

Nets for taking lake trout and whitefish, not less than 2%-ineh bar; 

Nets for taking Otsego whitefish in Otsego Lake, not less than 
lV2-inch bar; 

Nets for taking fish, other than lake trout and wliiteflsh, not less 
than iVs-inch bar; 

Nets for taking short-nosed sturgeon, not less than 2y2-inch bar; 
Nets for taking other sturgeon, not less than 5-inch bar. 

11. rish not allowed to be taken under the license shall be carefully 
handled and immediately returned to the water; fish wliich may be 
taken, if under the size limit and taken in gill nets, must be disposed 
of as provided in section 177 of the Conservation Law. 

12. Every person holding a license shall make an annual report to 
the Commission of the number, weight and species of fish caught and 
the value of the same, and return the tags issued to him with the 
license. 



Netting 183 

13. An applicant shall, at the time of filing his application for a 
license, pay to the Commission a license fee as provided in the follow- 
ing schedule : 

NET SCHEDULE 

For each minnow net, per lineal foot $0 10 

For each scoop, dip or scap net 10 by 10 feet square and under. 1 00 
For each scoop, dip or scap net over 10 by 10 feet square. ... 2 00 

For each fyke net 3-foot hoop and under 2 00 

For each fyke net 5-foot hoop and over 3 feet 3 00 

For each fyke net over 5-foot hoop 5 00 

For each 4-foot trap net and under 3 00 

For each 6-foot trap net and over 4 feet 5 00 

For each 8-foot trap net and over 6 feet 7 00 

For each machine trap net larger than 8 feet 10 00 

For each seine or gill net used only for taking fish not protected 

>^ by law, per lineal foot 15 

For each machine trap in the Niagara River 20 00 

For each seine or gill net used only for taking fish not protected 
by law, 2 cents per lineal foot. No license issued for less than 

$5.00 and the maximum fee for such licenses will be 15 00 

For each sturgeon line 1 00 

For each set-line 500 feet in length, 300 hooks to each line 1 00 

For each eel pot 3 00 

For each, eel weir and trap attached thereto 20 00 

For each stake net per 100 lineal feet. 3 00 



In the waters of Lake Erie and Lake Ontario the following fees 
shall apply; outside of the mile and half limit as provided in section 
276 of the Conservation Law : 

For each fyke net • • $10 00 

For each trap net 15 00 

For each row or sail boat used in fishing gill nets 10 00 

For each boat of any other kind under 10 tons gross tonnage 

so used 20 00 

For each boat of any other kind from 10 to 15 tons gross ton- 
nage so used 25 00 

For each boat of any other kind from 15 to 20 tons gross ton- 
nage so used 30 00 

For each boat of any other kind over 20 tons gross tonnage 
so used $1.50 per ton. 



184 Game Law Guide 

There is no refund on the revocation of a netting 
license and the rules do not prevent the issuance of more 
than one license to any one person. 

Net fishing is further regulated by Section 271 : 

When permitted by the commission lake trout, whitefish, pickerel, 
pike, pikeperch, shad, herring, striped bass, smelt or icefish and 
sturgeon of all kinds, of the size limit and during the open season 
therefor as prescribed in part seven of this article, and all fish 
not protected by law may be taken by nets in waters of the state, in 
any number or quantity. For the purpose of supervising the 
taking of fish with nets the commission is empowered to designate 
from the protectors a superintendent of inland fisheries at a salary 
of not to exceed twenty-five hundred dollars per annum, and his 
actual and necessary expenses while in the performance of his 
official duties, not to exceed one thousand dollars. 

Perch in the waters mentioned in Section 236a may be 
netted pursuant to this section. 

Small brook fish, such as may be caught for use as 
minnows come within those not protected by law. 

The mesh of nets is regulated by Section 272 ; 

When permitted the size of mesh of nets shall be as follows: 

1. Gill or other movable nets used for taking lake trout or 
whitefish, not less than two and three-eighths inch bar. For taking 
Otsego whitefish, commonly called Otsego bass, not less than one 
and one-half inch bar. 

2. Gill or other nets used for taking fish other than lake trout 
and whitefish, not less than one and one-eighth inch bar. 

Compare rules on nettiBg. 

The time of hauling nets is regulated by Section 273 : 

No nets or other devices for taking fish shall be hauled after 
sunset and before sunrise. 

Nets are to be buoyed and tagged as provided in 
Section 274: 

All nets or other devices for taking fish permitted under this 
part shall be buoyed and tagged in such manner as may be 
prescribed by the commission. 



Netting 185 

The use of nets in Lakes Erie and Ontario is governed 
by Section 276 : 

Fish, except black bass and maskalonge, may be taken with nets 
during the open season therefor in the waters of Lake Erie, except 
within one-half mile of the shores or islands thereof and within 
five miles of the mouth of Cattaraugus creek and, with the exception 
of sturgeon nets, within five miles of the head of Niagara river dur- 
ing the open season ; and in Lake Ontario opposite and between 
the east and west boundaries produced of Niagara county, except 
within one-half mile of the shores or islands of such lake and within 
one mile of the mouth of the Niagara river during the open season ; 
and in Lake Ontario outside of such waters opposite Niagara 
eount}^ from May sixteenth to September thirtieth, both inclusive, 
except within one mile of the shores or islands thereof during the 
open season, and from October first to Blay fifteenth, both inclu- 
sive, except within one-half mile of the shores or islands thereof 
during the open season. 

The use of nets in the Niagara river is regulated by 
Section 277 : 

Seines and squat nets may be used to take fish except black 
bass, lake trout, whitefish and maskalonge in the Niagara river in 
November, December, January and March. Fish except black 
bass, pike perch, lake trout, whitefish, pickerel and maskalonge 
may be taken by seine, machine or trap by citizens of the state in 
that part of the Niagara river in the town of Lewiston, Niagara 
county, during the time when Canadians may lawfully fish with 
such devices in said river on the Canada side opposite the town of 
Lewiston, provided a license therefor has been granted by the 
commission, and provided that lake trout and whitefish must not 
be taken during November and December. 

The use of nets in Chaumont bay is governed by Sec- 
tion 278 : 

Fish, except black bass, and maskalonge may be taken with 
nets during the open season therefor in the waters and bays of 
Lake Ontario, in the county of Jefferson, between Horse Island, 
in the town of Hounsfield, and the town line between the 
towns of Lyme and Cape Vincent, except the waters within one- 
half mile of Stoney Island, Calf Island or of the Galloup Islands 
from October first to June first, both inclusive, and except the 



186 Game Law Guide 

waters around Fox Island within three-quarters of a mile of said 
island between a line nmning due north from the foot of said 
island, and a line running due east from the south head of said 
island from October tenth to November twentieth both inclusive. 
Such nets shall on order of the commission be removed from any 
place after the black bass begin to i*un there. Sturgeon may be 
taken with sturgeon nets of not less than five inch bar at any time. 

The use of nets in the Hudson and Delaware rivers is 
regulated by Section 279 : 

Shad and herring may be taken with drifting nets operated by 
hand only from March fifteenth to Jtme fifteenth, both inclusive, 
in the Delaware river and that part of the Hudson river below the 
dam at Troy and north of Verplanck's Point. No such net shall 
be set, placed or drawn, or fish taken therefrom between sunset 
on Friday and sunrise on Monday. Fish except salmon, black 
bass, trout, pike perch and except also during March and April, 
pickerel and pike may be taken with nets in the Hudson river 
below the dam at Troy, from September first to May thirtieth, both 
inclusive. Sturgeon may be taken in the Hudson river with 
sturgeon nets of not less than five and one-half inch bar, from 
June first to September first, both inclusive. 

See section 1503 of the Penal Law. 

As to fishing on Sunday, see Sickles v. Sharp, 13 John- 
son, 497. 

Fishing boats are subject to inspection as provided in 
Section 281 : 

Any person owning or operating a boat or vessel used for the 
taking of fish shall, at any time, permit game protectors or other 
employees of the commission to board such boats and inspect the 
cargo or contents, and shall at any time carry such persons for the 
purposes of inspecting nets or the hauling of the same, or the 
taking of fish eggs. 

The seizure and confiscation of nets illegally used, are 
provided for in Section 282 : 

Seines, fykes, pounds, traps and other nets not authorized by law, 
had, set or used in or upon any of the inland or tidal waters of 
the state or on the shores thereof, or islands surrounded by said 
waters are hereby declared to be public nuisances, and shall be 



Netting 187 

summarily seized, abated and destroyed, by any game protector 
or may be sold by the commission at public auction to the highest 
bidder under rules and regTilations established by it; provided, 
however, the commission may direct a game protector to retain 
certain nets or seines for the use of the state hatcheries. Posses- 
sion of nets other than as provided for by part VIII at any time 
by any person in or on or within five hundred feet of any waters 
of the state shall be presumptive evidence that the same were 
unlawfully used. 

See section 154 chapter IV. 

Possession of nets whether in or outside of buildings 
within the five hundred foot mark is presumptive evi- 
dence only of their unlawful use. The drying of nets is, 
however, a part of their operation and use. 

Section 283 further provides : 

The reasonable expense of the seizure, removal or destruction 
of any net, pound or other illegal device shall be a county charge 
against the county in wbich the same shall be seized, and shall 
be audited and paid as a county charge on verified statement of 
the game protector making the seizure, stating the time and place 
of such destruction, the name of the person or persons employed, 
the time spent and money paid, if any, therein. The board of 
supervisors of any county may, by resolution, make such further 
regulation in the presentation of said statement and the destruc- 
tion of said devices as it may deem proper. 

Reasonable expense is not so narrow a term as neces- 
sary expense and should not be so construed in cases of 
seizure of nets by game protectors. 

Report of Attorney-General, 1903, page 305. 
Compare section 12 of the County Law. 



CHAPTER XIII 



MARINE FISHERIES 

See sections 282-283. 
The marine district is described in Section 300 : 

The marine district shall Lnelude all waters in and adjacent to 
Long Island and all tidal waters of the state, except the Hudson 
river north of Verplanck's Point. 

See section 280. 
See rules 1-13. 

It is provided in Section 301 : 

There shall continue to be a bureau of marine fisheries under 
the supervision and control of the commission. The commission 
may appoint for the bureau of marine fisheries a supervisor of 
marine fisheries, who shall administer the affairs of such bureau 
relating to shell fish and shell fisheries. 

The office and clerical force of the bureau are defined 
by Section 302 and the reports of the supervisor par- 
ticularly as to shellfish cultivation and leases of lands 
under water for such purposes are governed by Section 
303. 

See article VI of the Public Lands Law. 

Shellfish are defined by Section 380, subdivision 18 : 

" Shell fish " includes oysters, scallops and all kinds of clams. 

Leases of lands under ivater for shellfish cultivation 
and all matters concerning the same are covered by Sec- 
tions 304^309. 

See section 333. 

Sanitary inspection of shellfish grounds is provided 
for in Sections 310-313. 

[188] 



Marine Fisheries 189 

The taking of oysters from South Bay in Suffolk 
county is regulated by Section 314. 

See section 334. 

Blue Point oysters are those of at least three months 
growth taken from the waters of Great South Bay, 
Suffolk county. 

See section 315. 

Shellfish beds are protected by Section 316: 

Shellfish shall not be taken from sunset until sunrise. No person 
shall take, carry away, interfere with or disturb oysters or 
clams of anotlier lawfully planted or cultivated, or remove any 
stakes, buoys or boundary marks of a planted or cultivated bed. 
The possession of dredges, rakes or tongs overboard on any such 
beds shall be deemed prima facie e\'idence of a violation of this 
section. 

See section 1425 of the Penal Law. 

See Colon v. Lisk, 153 N. Y. 188. 

See People v. Warner, 116 A. D. 863. 

There are many cases applying the principles of lar- 
ceny to the unlawful taking of oysters. 

Fleet v. Hegeman, 14 Wendell, 42. 

Vroom V. Tilly, 99 A. D. 516, 184 N. Y. 168. 

People V. Morrison, 194 N. Y. 175. 

Section 317 further regulates the taking of shellfish: 

Dredges for taking of shellfish from public or unleased lands 
shall not be operated from any boat propelled otherwise than by 
sail or oars. 

Scallops are covered by Section 318 : 

Scallops shall not be taken or possessed, if less than one year 
old, except from legally planted or cultivated oyster lands. Noth- 
ing in this section shall be construed to permit the sale of scallops 
of less than one year of age for food. 

By Section 319, it is provided : 

No person who has not been an actual resident of this state for 
six months immediately prior to the time of engaging in the taking 



190 Game Law Guide 

of shellfish, shall take shellfish from the pubHe lands in or under 
the waters of this state. Nothing in this section shall apply to a 
person who may be employed as a deck hand, engineer or fireman 
on a boat whose eaijtain or owner may be a lawful resident. 

Section 320 provides as to starfish: 

Starfish and other natural enemies of shellfish shall be destroyed 
when taken, and shall not be returned alive to the waters of the 
state. 

The taking of lobsters is regulated by Section 321: 

Lobsters less than four and one-eighth inches measured on the 
carapace shall not be taken, possessed or sold. No person shall 
at any time take any female lobsters in spawn or with eggs 
attached, unless upon the written order of the state fish eulturist 
or the supervisor. 

Section 322 prescribes : 

All lobster traps constructed or used after the thirty-first day 
of December, nineteen hundred and fourteen, shall have at the 
bottom of the trap on each side thereof an opening not less than 
one and one-half inches wide. Such openings must remain clear 
and undiminished. 

The taking of lobsters is restricted to residents of the 
State except in certain cases as provided in Section 323. 

The taking and use of food fish are regulated hy 
Section 324. 

Pollution of waters is governed by Sections 325-326. 

The use of nets in certain waters is regulated by 
Sections 327-332. 

By Section 334, it is provided : 

The board of supervisors of the counties of Nassau and Suffolk 
may respectively pass laws not inconsistent with the provisions of 
this article regulating and controlling the taking of fish, and shell- 
fish in arms of the sea and fish bait from public lands of such 
counties, and prescribe what violations thereof shall be punish- 
able as misdemeanors and impose penalties, the same to be enforced 
under the provisions of article three of this chapter. 

See County Law, section 12. 



CHAPTER XIV 



TRANSPORTATION 

Assuming that quadrupeds, birds and fish protected 
hy law have been taken in compliance with the foregoing 
provisions of the law, the State in the exercise of its 
police power and by virtue of its socalled ownership still 
regulates the matter of their transportation. 

See section 176. 

The general restrictions as to transportation contained 
in former statutes on the question have been interpreted 
by the courts and decisions based upon a strict construc- 
tion of the law have been made as follows : 

In Dietrich v. Fargo, 194 N. Y. 359, the restriction was 
held not to apply to domesticated deer. 

See section 372. 

Ignorance of the common carrier when he has not 
reason to know that packages contain game is a defense. 

Maine v. Sweet, 29 L. R. A. 714. 
People V. Montena, 139 A. D. 421. 
See section 179, subdivision 1. 

In People v. Montena, it was held that the prohibition 
applied to the person delivering the package to the car- 
rier for shipment, but in People v. Suydara, 204 N. Y. 
419, it was held that the prohibition applied only to a 
person or common carrier who receives the game iov 
shipment and not to the person delivering the same for 
shipment. 

See section 176. 

[191] 



192 Game Law Guide 

In People v, Bisbee, 90 M. 601 the statute was held to 
apply to transportation within the State only and not to 
importation or exportation. 
See section 381. 

The former statutes have been held to be inapplicable 
to animals brought from without the State. 

People V. Cone, 33 M. 393. 

People V. Buffalo Fish Co., 164 N. Y. 93. 

People V. Allen, 20 M. 120. 

See section 381. 

However, the general power of the State to regulate 
transportation, importation and exportation indcipond- 
ent of the Lacey Act or other federal laws was upheld in 
People ex rel. Silz v. Hesterberg, 184 N. Y. 126, 211 
U. S. 31. 

See People v. Fargo, 137 A. D. 727. 

The interstate commerce act prohibiting disclosures 
by common carriers without the consent of the shipper 
or consignee was not intended to shield carriers and 
their employees against disclosing information in regard 
to illegal shipments of game. 

Report of Attorney-General, 1911, Vol, II, page 648. 

In view of the interpretation of former statutes and 
the fact that there is no definition of the term transport 
which broadens the construction put upon it by People v. 
Bisbee, 90 M. 601 (which is on appeal), the present stat- 
ute applies only to such transactions as possession and 
transportation occurring after the game reaches or 
before it leaves the territory of New York State. The 
carriage of such fish or game then amounts to transpor- 
tation within the meaning of Sections 176 and 178 and 
the person who transports or who avails himself of the 
fish or game shipped from without the State at the des- 
tination in this State is in possession of it. Such posses- 
sion during the close season in this State and such trans- 



Transportation 193 

portation at any time would be in violation of Sections 
176 and 381, unless otherwise permitted by law. 

See People v. Fargo, 137 A. D. 727. 

Section 178 which generally provides what transporta- 
tion of quadrupeds, birds and fish protected by law may 
be indulged in without violating Section 176 and which 
presumptively clears away the complications raised by 
former statutes and their interpretation reads as 
follows : 

Subd. 1. Common carriers 

No common carrier or employee of such carrier shall, while 
engaged in such business, transport as owner of any fish or game 
or parts thereof of species which may not be lawfully sold at any 
time. Nor shall such carrier or person knowingly receive or possess 
the same for shipment for another whether contained in a pack- 
age or unpacked if no sJiipping permit is attached as required in 
this section. 

This restriction does not apply to private carriers. 

Subd. 2. Transportation and exportation of fish and game law- 
fully salable 

Any person may transport in any manner within this state or 
from a point within to a point without during the open season 
therefor, and in any number, wild quadrupeds, birds or fish of 
species which may be laivfiilly sold. 

Game or fish raised in private hatcheries or preserves and car- 
casses of birds and mammals from without the United States and 
which may be lawfully imported and sold, when marked and tagged 
as provided in part twelve of this article, may be transported 
within and from a jioint within to a point without this state in any 
number and by any means. 
See sections 370-375. 

Subd, 3. The same; of fish and game not lawfully salable 

Any person may transport within this state or from a point 
within to a point without otherwise than by common carrier or 
parcel post and during the open season therefor wild quadrupeds, 
birds or fish but not more in any one day than the number thereof 
wiiich may be lawfully taken in one day by one person when of 

13 



194 Game Law Guide 

species which may not he lawfully sold at any time except as other- 
wise provided in section one hundred and ninety hereof. 
See section 190 on deer. 

The taker may transport within this state or from a point within 
to a point without by common carrier except by parcel post, and 
during the open season therefor, wild quadrupeds, birds or fish 
but not more in any one day than the number thereof which he 
may lawfully take in one day when of species which may not be 
lawfully sold at any time provided the same or the package con- 
taining them shall have attached thereto before shipment, with the 
blanks properly filled in by him, a shipping permit issued by the 
commission except as otherwise provided in section one hundred 
and ninety hereof. 

The form of such permit shall be determined by the commission. 

See section 190 on deer. 

Subd. 4. Importation of fish and game not lawfully salable 

The taker may transport from a point without to a point within 
the state, during the open season therefor within the state of 
New York, game or fish of species which may not be lawfully sold, 
provided such game or fish was lawfully taken and may be law- 
fully brought from the place where taken; and further provided 
that the taker accompanies the same; or, the same may be shipped 
by him by common carrier except parcel post, but La that case the 
shipping requirements of subdivision three of this section shall 
apply. 

The taker may transport from a point without to a point within 
the state, during the closed season therefor within the state of 
New York, game or fish of species which may not be lawfully 
sold, or for which there is no open season, provided such game or 
fisih was lawfully taken and may be lawfully brought from the 
place ivhere taken, and further provided that the taker accom- 
panies the same and shall have with him a license issued by the 
commission permitting such transportation. Quadrupeds may be 
Shipped by the taker by common carrier, except by parcel post, 
but in that case the shipping requirements of subdivision three of 
this section shall apply. Such game or fish when so transported 
may be possessed at any time. 

Subd. 5. The same; of fish and game lawfully salable 

Importation and transportation by any means and in any num- 
ber during the open season therefor of wild game or fish the sale 



Transpoetation 195 

of which is permitted by this article shall be lawful except as 
otherwise expressly provided therein. 

Subd. 6. Shipping permits; prohibitions; limitation 

Only holders of hunting and trapping licenses shall be entitled 
to shipping permits described in subdivision three of this section, 
for shipment of quadrupeds or birds taken in this state. No 
person shall be entitled to receive nor shall he apply for more 
than six such permits in any calendar year nor shall any person 
to whom such a permit has been issued transfer the same in any 
manner to any other person nor shall any other person use the 
same for shipping fish or game nor shall any person make any 
false statement in applying for such a permit nor shall one person 
use more than six thereof for shipping fish and game in any one 
calendar year. 

Eule 32 provides : 

"An importation license, pursuant to the provisions of section 
178, subdivision 4, of the Conservation Law, may be issued upon 
application at any time. Such license shall expire on the thirty- 
first day of December following the date of issue. A fee of one 
dollar ($1.00) shall be charged for such license." 

The restriction of Section 176 does not apply to the 
transportation of quadrupeds, birds or fish not protected 
by law. 

Section 178 removes all restriction from the transpor- 
tation during the open season therefor of quadrupeds, 
birds and fish lawfully salable even though protected by 
law. 

As to the transportation of all quadrupeds, birds and 
fish not salable and the transportation during the close 
season of all those salable but protected by law, the pro- 
visions of the statute must be complied with. 

No birds, protected by laiv, are salable except as pro- 
vided in Sections 159, 372, 373 and 179 and these excep- 
tions where applicable hold likewise as to quadrupeds 
and fish. 

All fish protected by law are salable except bass and 
trout. 



196 Game Law Guide 

All quadrupeds protected by law for which there is an 
open season, are salable except deer and squirrels. 

Ill the cases of quadrupeds, birds and fish which may 
not lawfully be sold only the limit per day per person can 
be transported and in the case of deer, but one carcass 
can be shipped. 

As an exception to Sections 176 and 178,' Section 179 
provides : 

The provisions of section one hundred and seventy-eight hereof 
shall not apply to transportation of fish and game for propaga- 
tion purposes nor to transportation of the head, hide, feet or fur 
of quadrupeds of the plumage or skin of game birds legally taken 
and possessed and the same may be transported at any time. The 
head, hide and feet of quadrupeds legally taken and possessed may 
be bought and sold at any time. 

See also chapter XV on Breeding, Importation and Sale. 
See section 159. 



CHAPTER XV 



BREEDING, IMPORTATION AND SALE OF FISH 

AND GAME 

One of the principal qualifications of and exceptions 
to Sections 176 and 178 is Part XII of the law contained 
in Sections 370-375, 

By Section 370 it is provided : 

Fish that may be lawfully sold under the provisions of this 
article, if lawfully taken in another state or country, may be 
transported into this state and possessed during the open season 
prescribed by this article. Provided, however, that no person shall 
transport into this state, or possess, any fish caught in that portion 
of Lake Champlain or its tributaries known as Missisquoi bay, 
h'ing and being in the province of Quebec, or the Richelieu river, 
which is the outlet of said lake, at any time. During the close 
season therefor any person may buy, possess and sell lake trout, 
whitefish, pickerel, pike, pike perch, shortnosed sturgeon and 
striped hass taken without the state, provided, however, such per- 
son shall keep a book of record in which he shall enter the name, 
residence and post-office address of every person from whom he 
shall buy, sell to or ship such fish and at all times shall permit 
the commission, or any member or officer thereof to make a full 
examination of his books and papers relating to the purchase and 
sale of fish, and when required by the commission, furnish the 
original invoice or invoices, freight or express receipts used in 
the transportation thereof. 

Compare section 375. 

See section 169 on the powers of game protectors. 

In the case of People v. Wolf, 112 A. D. 449, it was 
held that it was not incnmbent upon any person purchas- 
ing such fish during the close season to show that they 
were caught outside of the State. That case, however, 

[197] 



198 Game Law Guide 

arose under the Forest, Fish and Game Law, Section 47, 
as amended to 1905 providing for licensed and bonded 
dealers. 

It seems that under the present provision unless the 
person accused can and does furnish the proofs and 
tracers referred to in Section 370, the presumption raised 
by Section 181 will apply, the burden of proof on the 
whole case and the whole issue resting however upon the 
State. 

See Procedure. 

It also seems that where a person has purchased in 
good faith from another person, fish which the latter 
represents and warrants to be within the protection of 
this section, but which in fact are not, the purchaser 
would have a recovery over and cause of action against 
the seller for breach of implied and express warranties 
and in case of deceit, for fraud, in the event of any loss 
or penalty. 

Section 371 provides as to trout: 

Any person desiring to engage in the business of propagating 
and selling trout raised in a private hatchery may make application 
in ivriting to the commission for a permit so to do. The commis- 
sion when it appears that such application is made in good faith, 
shall issue to such applicant a hatchery permit to propagate, raise 
and sell trout during the entire calendar year, provided, however, 
that before any trout shall be transported, sold or offered for sale 
the same shall be duly tagged under regulations prescribed by the 
commission. Upon obtaining a like permit, trout raised in a pri- 
vate hatchery without the state may be possessed and sold within 
the state, provided the same shall be tagged as prescribed under 
rules and regulations of the conunission. 

With the above sections are to be read Rules 21-26 : 

21. The Commission will lease to each applicant to whom a permit 
is issued to engage in the business of propagating and selling trout 
raised in a private hatchery, a device to be used in tagging the trout. 
No device other than the one so furnished shall be used for this pur- 
pose. Each applicant shall pay to the Commission as and for rental 



Breeding, Importation and Sale of Fish and Game. 199 

of said machine for the /?r.sf year the sum of sixty-five dollars, in 
advance, and the sum of one dollar each year thereafter. At the expira- 
tion of said permit the applicant shall return said machine to the 
Conservation Commission, in as good condition as when taken, natural 
wear and tear excepted. 

22. The Commission will furnish to each person to whom a permit 
is issued metallic tags inscribed with the letters " N. Y. S. C. C." Each 
applicant where hatchery is located witJiout the state shall pay to the 
Commission for said tags the sum of three cents each. Each applicant 
shall pay to the Commission for said tags the sum of one cent each. 
Only tags so furnished shall be used; no tag shall be used more than 
once. 

23. Artificially propagated trout not less than six inches long may 
be sold for consumption, at any season of the year, under said permit, 
provided one of said metallic tags is firmly attached to each trout. 
The sale of wild trout is prohibited at all times. 

Any person holding a permit as aforesaid may sell, exchange or give 
away at any season of the year, for the purpose of propagation or 
exhibition, any live trout propagated by him. 

Live trout for propagation purposes only, may be transported when 
accompanied by a permit issued by the Commission and not otherwise. 

See section 159. 

24. Before any trout are shipped or transported the package in which 
the same are contained must have affixed thereto a tag on which shall 
be plainly marked the number of pounds and kind of trout contained 
therein, together with the name and address of the consignee and the 
consignor, the initial point of hilling and the point of destination. 

25. Any person may buy, sell or have in possession for sale for use 
as food at any season of the year, a trout artificially propagated and 
kept, provided that such trout is not less than six inches long and 
provided also that the same is tagged as hereinbefore provided. The 
tag shall be removed only by the consumer, and when removed shall 
be destroyed. 

26. Every person receiving a permit as aforesaid, to propagate and 
keep trout, shall make a written report to the Commission on or before 
December thirty-first of each year, stating the number and variety of 
trout sold or exchanged, or given away for use as food, or for propa- 
gation or exhibition during the preceding year. 

i 

There is no restriction as to the manner in which 
such trout may be taken. 



200 Game Law Guide 

Section 372 provides as to the breeding and sale of 
elh, deer, pheasants and ducks as follows : 

1. License 

Any person desiring to engage in the business of raising and 
selling domesticated American elk, white-tailed deer, European red 
deer and fallow deer, roebuck, 2^h€cisants, mallard ducks and black 
ducks, or any of them, in a wholly enclosed preserve, or entire 
island, of which he is the owner or lessee, may make application 
in writing to the commission for a license so to do. The com- 
mission, Avhen it shall appear that such application is made in 
good faith, shall, upon the payment of a fee of five dollars, issue 
to such applicant a breeder's license permitting such applicant to 
breed and raise domesticated American elk, whitetaUed deer, 
European red deer and fallow deer, roebuck, pheasants, mallard 
ducks and black ducks, or any of them, on such preserve or entire 
island, and to sell the same alive at any time for breeding or 
stocking purposes and to kill and transport the same and sell the 
carcasses thereof for food as hereinafter provided. Snch license 
shall expire on the last day of December in each year at midnight. 

2. Manner of killing 

Any person to whom such a license shall have been issued may 
kill such elk, deer, pheasants, or ducks in the manner and at the 
time herein set forth, as follows: Elk, deer, pheasants, mallard 
ducks or black ducks may be killed in any manner at any time, but 
mallard ducks or black ducks, killed by shooting, shall not be 
bought, sold or trafficked in, except under such rules and regula- 
tions as the commission may prescribe. Any person may possess 
or sell snch elk, deer, pheasants or ducks for food as hereinafter 
set forth. 

3. Tagging 

No elk, deer, pheasants or ducks, killed as aforesaid and intended 
for sale, shall be shipped, transported, sold or offered for sale, 
unless each quarter and each loin of each carcass of such elk or 
deer, and each pheasant or duck shall have been tagged under the 
supervision of the commission with an indestructible tag or seal, 
which shall be supplied by the commission. The quarters and 
loins of the carcass of such elk or deer, and the carcasses of such 
pheasants or ducks, when tagged as aforesaid, may be possessed, 
sold or offered for sale at any time. Every game protector or 
person designated by whom such elk, deer, pheasants or ducks shall 
have been tagged, shall within five days thereafter, make and file 



Breeding, Importation and Sale of Fish and Game. 201 

with the commission a ivritten report thereof, said tags or seals 
shall remain affixed as aforesaid until the quarters or loins of 
such elk or deer, or the carcasses of such pheasants or ducks shall 
have been wholly consumed, and the sale of a quarter, loin, or 
any larger portion of any such elk or deer, or the carcass of any 
such pheasant or duck, which shall not at the time Have affixed 
thereto the tag or seal aforesaid, shall constitute a violation of 
this section, provided, however, that the keeper of a hotel, a 
restaurant, a hoarding house or a retail dealer in meat or a club 
may sell portions of a quarter or loin of any such elk or deer, or 
of the carcass of any such pheasants or ducks so tagged or sealed 
as aforesaid, to a patron or customer for actual consumption, 
and no license shall be req\iired of such person or club. 

4. Transportation 

Common carriers may receive and transport dui'ing the open 
season therefor carcasses, or parts thereof, of elk, deer, pheasants 
or ducks tagged as aforesaid, but to every package containing such 
carcasses, or parts thereof, shall be affixed a tag or label, upon 
which shall be plainly printed or written the name of the person 
to whom such license was issued and by whom such elk, deer, 
pheasants or ducks were killed, the name or names of the person 
or persons to whom such elk, deer, pheasants or ducks are to be 
transported; the name of the game protector or other person by 
whom such elk, deer, pheasants or ducks were tagged; the number 
of carcasses or portions thereof contained therein, and that the 
elk, deer, pheasants or ducks were killed and tagged in accord- 
ance with the provisions of this section. 

5. Sale 

No person shall sell or offer for sale any venison or birds killed 
and tagged as aforesaid without first obtaining a license so to do 
from the commission, upon such terms and conditions as the com- 
mission may prescribe, and any such license may be revoked at the 
pleasure of the commission. The said tags or seals shall remain 
affixed as aforesaid until the quarters or loins of such elk, or deer, 
or the carcasses of such pheasants or ducks shall have been 
ivholly consumed, and the sale of a quarter, loin, or any larger 
portion of any such elk or deer, or the carcass of any such pheas- 
ant or duck, which shall not at the time have affixed thereto the 
tag or seal aforesaid, shall constitute a violation of this section, 
provided, however, that the keeper of a hotel, a restaurant, a 
boarding house, or a retail dealer in meat or a club, may sell por- 
tions of a quarter or loin of any such elk or deer, or of the 



202 Game Law Guide 

carcass of any such pheasants or ducks so tagged or sealed as 
aforesaid, to a patron or customer for actual consumption, and 
no license shall be required of such person or club. 

6. Reports 

On or before the fifteenth day of April of each year, every per- 
son, to whom a license shall have been issued as aforesaid, shall 
make a report to the commission covering the calendar year end- 
ing the thirty-first day of December in which said license was 
issued, which said report shall state the total number of elk, 
deer, pheasants, mallard and black ducks hilled, sold or trans- 
ported, as permitted by the provisions of this section, during the 
said period. 

Such reports shall set forth the name of the person to whom 
such elk, deer, pheasants or ducks were sold or transported; the 
name of the game protector or person designated in whose pres- 
ence such elk, deer, pheasants or ducks were tagged, and such 
reports shall be verified by the affidavit of the person to whom 
such license was issued, or if the license was issued to a corpora- 
tion, then by an officer thereof. 

7. Deer Preserves to be fenced 

A preserve used for the breeding of elk or deer, pursuant to 
this section, shall be surrounded by a fence of wire or other 
material of a pattern to be approved by the commission of a 
height not less than seven feet, 

8. Revocation of license 

If any person to whom any such license shall have been issued 
shall be convicted of a violation of the conservation law in relation 
to fish and game, the commission may revoke the license of such 
person, and thereafter no similar license shall be issued to such 
person. 

See section 380, subdivision 9, on domestic game. 

Rule 33 provides : 

" Black and mallard ducks raised under a breeders' license pur- 
suant to the provisions of section 372 of the Conservation Law 
and killed by shooting during the open season for wild waterfowl 
may be sold at any time, provided permission in writing so to do 
shall first have been obtained from the Commission, and further 
provided : 



Breeding, Importation and Sale of Fish and Game. 203 

"(1) That said black and mallard ducks shall have been marked 
or tagged by a rejiresentation of the Commission before being 
killed. The marks or tags used are to be furnished by the Com- 
mission at a charge of one cent each. 

"(2) That said black and mallard ducks be also tagged pur- 
suant to the provisions of said section 372, subdivision 3, thereof, 
during the said open season for wild waterfowl." 

Section 373 provides as to mammals and birds 
imported from without the United States as follows: 

The unplucked carcasses of pheasants of all species, Scotch 
grouse, European black-game, European black plover, European 
gray-legged partridge, European red-legged partridge, Egyptian 
quail, and the carcasses of European red deer, fallow deer, roe- 
buck and reindeer may be imported into this state from without 
the United States and sold therein at any time, provided, never- 
theless, that immediately ujoon their importation and before they 
shall have been sold by the importer, there shall be affixed to each 
bird and to each quarter and each loin of each deer a tag or seal 
in the manner provided by section three hundred and seventy-two. 
The said tags or seals shall remain, as aforesaid, until the qu-arters 
and loin of such deer, and each bird to which it shall be affixed 
shall have been consumed, and the sale of any quarter, loin or 
larger portion of such deer, and each bird to which it shall be 
affixed shall liave been consumed and the sale of any quarter, loin 
or larger portion of such deer, or of any portion of such bird 
which shall not at the time have affixed to it the tag or seal afore- 
said shall constitute a violation of this section. Provided, never- 
theless, that the keeper of a hotel, a restaurant, a boarding house 
or a retail dealer in meat or a club may sell portions of any birds 
so tagged to a guest, customer or member for consumption. No 
dealer other than the keeper of a hotel, a restaurant, a boarding 
house or a retail dealer in meat or a club shall sell or offer for 
sale any such game imported and tagged as aforesaid without 
first obtaining a license so to do from the commission upon such 
terms and conditions as the commission may prescribe. Such 
license shall expire on the last day of December in each year at 
midnight unless sooner revoked by the commission. 

Compare section 377. 

See section 380, subdi\dsion 10, on imported game. 



204 Game Law Guide 

Fees are provided for in Section 374: 

The commission shall be entitled to receive and collect for each 
tag or seal affixed to the carcass of any animal or bird, as pro- 
vided by sections three hundred and seventy-two and three hun- 
dred and seventy-three, the sum of five cents; and the sum of 
one cent for each tag or seal affixed to each trout as provided by 
section three hundred and seventy-one hereof. 

The storage of fish is. provided for in Section 375: 

Any dealer in fish or frogs, duly licensed as herein provided, 
may hold during the close season, in a store house to be designated 
by the commission, such part of his stock of fish or frogs as he 
has on hand undisposed of at the beginning of the close season. 
Such dealer shall give a bond to the people of the state con- 
ditioned that he will not, during the close season ensuing, sell, use, 
give away, or otherwise dispose of an^^ fish or frogs which he is 
permitted, to possess during the close season; that he will not in 
any way, during the time when such bond is in force, violate any 
provision of this article; the bond may also contain such other 
provisions as to the inspection of the fish or frogs possessed, as 
the commission shall require, and shall be subject to the approval 
of the commission as to amount and form thereof, and the suffi- 
ciency of the sureties. But no presumption that any fish or frog 
is laivfidly possessed under the provisions of this section shall 
arise until it affirmatively appears that the provisions thereof 
have been complied with. 

Compare section 370. 

Section 377 provides as to mammals and birds imported 
from without the State: 

Any person engaged in the business of raising and selling 
domesticated American elk, whitetail deer, European red deer and 
fallow deer, roebuck, pheasants, mallard ducks and black ducks, 
or any of them, in a wholly enclosed preserve or entire island, 
of which he is the owner or lessee, under a breeder's law pro- 
viding for the tagging of all presen-e bred game and otherwise 
similar in principle to the law of the state of New York in such 
case made and provided, may make application in writing to the 
commission for a permit to import such mammals or birds into 
the state of New York and sell the same. In the event that the 
commission shall be satisfied that the said mammals and birds are 



Breeding, Importation and Sale of Fish and Game 205 

bred in caplivitji and are killed and tagged under a breeding law 
similar in principle to that of the state of New York, upon the 
payment of a fee of five dollars, together with such additional 
sum as the commissioner may determine to cover the necessary 
cost of inspection, the commission maj^ in its discretion issue a 
revocable permit in writing to such applicant to import such 
mamynaU and birds raised as aforesaid into the state of New York 
and to sell the same, in which case the provisions of sections 
three hundred and seventy-two, three hundred and seventy-three 
and three hundred and seventy-four of the conservation law, in so 
far as the same are applicable, shall apply. 

Compare section 373. 

The foregoing provisions of the Conservation Law 
whereby certain game birds from foreign countries are 
exchided and others admitted are based upon ornithologi- 
cal rather than geographical lines. The scheme is to 
permit the importation of birds which do not resemble 
our native birds and at the same time treat fairly the 
legitimate commercial interests of this and other nations. 

Attorney-General's Report, 1911, vol. II, page 667. 

The same principle is true as to the mammals men- 
tioned and as to the commercial interests of this and 
other states. 

See People v. Stillman, 117 A. D. 170. 
People V. Weinstock, 193 N. Y. 481. 
• People V. Waldorf Co., 118 A. D. 723. 
People V. Booth & Co., 105 A. D. 184. 
People V. Harrison Co., 138 A. D. 124. 
Silz V. Hesterberg, 184 N. Y. 126. 
Dieterich v. Fargo, 194 N. Y. 359. 



CHAPTER XVI 



THE PROTECTIVE FORCE 

The Conservation Law as to fish and game is primarily 
enforced by the Commission through the activities of the 
protective force under the supervision of the chief game 
protector who is in main charge of the Department of 
Fish and Game. 

Section 165 provides as to the protective force and its 
twelve divisions as follows : 

The commission shaU appoint one hundred and twenty-five game 
protectors. The commission shall appoint a chief game protector, 
a deputy chief game protector, twelve division chief protectors, 
five fisheries protectors, and a protector for the Saint Lawrence 
river. The chief game protector shall have general supervision 
and control of all protectors. The positions of chief game pro- 
tector, deputy chief game protector, division chief protectors, fish- 
eries protectors, the protector for the Saint Lawrence river and 
the other game protectors provided for by this section shall here- 
after be classified in the competitive class of the classified civil 
service. 

Protectors are rated according to the provisions of 
Section 166 : 

The commission shall have power to remove, to suspend without 
pay, to reduce in rank, to act as a trial hoard in hearing and 
passing upon charges, and to rate all game protectors and fish- 
eries protectors on the basis of merit and efficiency, in accordance 
"with the provisions of the state civil service law. It shall rate all 
protectors on the basis of merit and efficiency in three grades, to 
be known as the first, second and third grades. Protectors rated 
in the first and second grades shall not be removed unless furnished 
with reasons for removal and given a hearing. The commission 
is empowered to make such rules and regulations as in its judg- 
ment are required, to secure a proper rating of the protectors, 
or to carry out the provisions of this section. 

[206] 



The Peotective Force 207 

Bonds are required by Section 167 : 

The chief game protector shall give a bond to the people of the 
state in the sum of one thousatid dollars conditioned for the faith- 
ful discharge of his duties, with sureties to be approved by the 
commission. Every game protector shall give a like bond in the 
sum of five hundred dollars. 

Their compensation is fixed by Section 168 : 

The chief game protector shall receive an annual salary of four 
thousand dollars. The deputy chief game protector shall receive 
an annual salary of twenty-four hundred dollars. Each division 
chief protector shall receive an annual salary of sixteen hundred 
dollars and his actual and necessary traveling expenses, not exceed- 
ing seven hundred and fifty dollars a year. Each fisheries pro- 
tector shall receive an annual salary of thirteen hundred dollars, 
and his actual and necessary traveling expenses, not exceeding 
seven hundred and fifty dollars. Each game protector shall 
receive an annual salary of nine hundred dollars and his actual 
and necessary traveling expenses, not exceeding six hundred dol- 
lars; provided, however, that each game protector who shall have 
been rated in the first grade for a full year shall receive increased 
salary at the rate of fifty dollars per annum, and for each year 
thereafter in which he shall so qualify he shall receive a like 
increase until he receives the sum of thirteen hundred dollars per 
annum, but the commission shall have the power in its discretion, 
for cause shown, to cancel such increase or any part thereof on 
the failure of any protector receiving such increase to qualify for 
the first grade in any year. Game protectors rated in the first 
grade only shall be eligible for promotion. 

The first grade for the year 1916 includes the first 
thirty on the merit list. 
Their powers are enumerated in Section 169 : 

Game protectors, forest rangers, and fisheries protectors shall 
enforce all laws relating to fish, birds and quadrupeds; all laws 
of boards of supervisors relating to the same; and shall have power 
to execute all warrants and search warrants issued for a violation 
of this article; to serve subpoenas issued for the examination and 
investigation or trial of offenses against any of the provisions of 
said law; to make search where they have cause to believe that 
fish, birds or quadrupeds, or any parts thereof, are possessed in 



208 Game Law Guide 

violation of law, and without search warrant to examine the con- 
tents of any boat, car, automobile or other vehicle, box, locker, 
basket, creel, crate, game bag or other package, and the contents of 
any building other than a dwelling house, to ascertain whether any 
of the provisions of this article or of any law for the protection of 
fish, shell-fish, birds or quadrupeds have been or are being' violated, 
and to use such force as may be necessary for the purpose of 
such examination and inspection; and with a search warrant to 
search and examine the contents of any building or dwelling house; 
seize all quadrupeds, birds or fish or any parts thereof possessed 
in violation of law or showing evidences of illegal taking and 
seize and confiscate all devices used in taking fish, game or wild 
animals illegally, and hold the same subject to the order of the 
commission; to arrest without warrant any person committing a 
misdemeanor under the provisions of this article in their presence, 
and take such person immediately before a magistrate having juris- 
diction for trial, and to exercise such other powers of peace 
officers, in the enforcement of the provisions of this chapter, or of 
judgments obtained for violation thereof, as are not herein specific- 
ally provided. Any regular or special game protector, fisheries 
protector, fire superintendent, forest ranger or inspector who shall 
cow.promise or settle any violation of the fish and game law out 
of court or except as provided by section thirty-six of this chapter, 
without the order of the commission, shall be guilty of a 
misdemeanor. 

A game protector to be entitled to hunt must comply 
with Section 185. 

A game protector is not required to secure a license 
under the Sullivan Law to carry concealed weapons. 

Report of Attorney General, 1913, vol. II, page 636. 

A game protector has no authority to receive pay in 
compromise of a penalty. 

People V. Klock, 55 M. 46. 

The compromise of civil causes of action for the pen- 
alty made through protectors are to be made in court 
subject to the approval of the Commission unless made 
out of court by stipulation on the order of the Com- 
mission. 

See Procedure and sections 9, 26, 29, 36, 50 and 51. 



The Protective Force 209 

Game protectors are entitled to be taken on any boat 
or vessel used for the taking of fish at any time. 

See section 281. 

Where a game protector enters upon lands whether 
posted or parked or not for the bona fide enforcement of 
the law or to ascertain whether the law is being violated 
he commits no actionable trespass ; but he has no right to 
hunt or fish without the consent of the owner of the land 
or the consent of the owner of the exclusive rights 
thereon. ' '• 

To accomplish an arrest a game protector may com- 
mit what would otherwise be a trespass. 

People V. Morehouse, 6 N. Y. Supp. 763. 

By the Connecticut statute any game protector may 
deputize another person to assist him in detecting any 
violations or making arrests. 

By Section 169 of the Criminal Code, it is provided : 

Every person must aid an officer in the execution of a 
warrant if the officer require his aid and be present and 
acting in its execution. 

Assistants to game protectors should wherever possi- 
ble be other protectors, special protectors or peace offi- 
cers in order to avoid any technical questions of trespass. 

Sections 1824 and 1825 of the Penal Law make it a 
misdemeanor knowingly to resist or obstruct a game pro- 
tector in the discharge of his duty. 

Compare section 1851 of the Penal Law. 

Section 1846 of the Penal Law makes it a misdemeanor 
to impersonate a game protector. 

See Procedure as to arrests. 

14 



210 Game Law Guide 

The matter of reasonable searches and seizures are 
Avithin the control of the State and 'are not affected by 
Amendment IV to the U. S. Constitution. 

Matter of Spies, 123 U. S. 181. 
Eilenbecker v. District, etc., 134 U. S. 31. 
Kansas v. Bradley, 26 Fed. Rep. 289. 

Section 169 gives to a protector acting in good faith 
in the matter of search, almost as ' ' wide a charter as the 
wind. ' ' 

A protector may search witJiout warrant any building 
except a divelling house or building used as a divelling 
and as to buildings other than dwelling houses he has the 
same powers and rights of search without warrant as he 
has with warrant. 

See Procedure as to seareli warrants. 

A building any part of whicli is usually occupied by a 
person or person lodging therein at night is ordinarily 
deemed a dwelling house. 

See section 400 of tlie Penal Law. 

The power of search given to protectors, it seems, 
includes what amounts substantially to a reasonable 
search of the person and embraces the power without 
warrant to search any receptacle of any kind not inside 
a dwelling where he has any reason to suspect that it 
contains fish or game. 

Compare sections 154, 221 and 282 on seizures. 

See Chapter IV, Section 152, on laws enacted by boards 
of supervisors. 

No action can be maintained against a protector for 
releasing wild animals unlawfully taken or possessed. 

James v. Wood, 8 L. R. A. 448. 



The Protective Force 211 

Protectors are required by Section 170 to make reports 
as follows : 

The chief game protector and division chief protectors shall 
make such reports as are required by the commission. Each game 
protector shall keep a claih/ record of his official acts, and report 
the same at the close of each week to the division chief of his 
division, and similarly report at the close of each month to the 
chief game protector. The salary and traveling expenses of a 
game protector shall not be payable except upon the certificate 
of the chief game protector that such protector has made the 
required report and joroperly performed his duty. 

Special game protectors are provided for by Section 
171 as follows: 

The com.mission laay in its discretion appoint special game pro- 
tectors. Such special game protectors shall hold office during the 
pleasure of the commission, and shall have the same powers as 
game protectors^ and receive one-half of the fines and penalties 
less expenses. They shall make reports as required hij the com- 
mission. No person shall be eligible for such appointment until he 
shall have passed a non-competitive examination conducted uiMer 
authority of the commission. 

See section 185, subdivision 11. 

A moiety is one-half the fine or penalty after the 
deduction of the expenses of collection. 

Roberts v. Hatch, 40 Hun 53. 

Contracts entered into by special protectors to share 
moieties with each other or third persons have been 
upheld. 

Overton v. Williams, 139 A. D. 177. 

This would not apply to regular protectors. 

See section 29, and Carpenter v. Taylor, 1G4 N. Y. 171. 

The Yukon act gives the moiety to the informer and 
Oregon statute offers a reward for information resulting 
in conviction. 



212 Game Law Guide 

The powers of peace officers are covered by Section 
172: 

Peace o/Jicers shall have the same powers as game protectors 
under this article, except the right to search without warrant. 

See section 185. 

Peace officers are sheriffs, under sheriffs and deputy 
sheriffs, and constables, marshals, police constables or 
policemen of a city, towai or village. 

Section 154 of the Criminal Code. 

Provision is made by Section 173 for the defense of 
protectors against suits: 

It shall be the duty of the attorney-general on request of any 
regular game protector, accompanied with the approval of the 
commission, to appear in and defend as attorney any action or 
proceeding prosecuted against the protector for or on account of 
any act of his done while holding such office and when such act 
. was, in the opinion of the attorney-general done in discharge of 
the protector's official duty or in reasonable exercise of his 
authority. 

In broad terms a protector is liable for acts done in 
excess of his authority and for any damage or injury to 
person or property negligently, unnecessarily or malic- 
iously inflicted in the discharge of his duty. 

Every association for the protection of fish and game 
should make it one of its foremost objects to furnish 
assistants and assistance to game protectors. 

The members of such associations should themselves 
first of all obey the laiv and next furnish proof and prose- 
cution in the case of every violation seen. 

No protector should be obliged to cut into his expense 
account for extraordinary traveling expenses and every 
association- could readily place at his reasonable dis- 
posal the use when needed of automobiles and of motor 
boats. 



The Protective Force 213 

It is conceded on all sides that even with proper co- 
operation from such associations, from peace officers in 
general and the sheriff in each county in particular, from 
special protectors and in all probability, in the future, 
from U. S. marshals and their deputies and from federal 
wardens, the protective force is numerically inadequate 
and should be increased. In addition the movement to 
establish a State constabulary or rural police force cor- 
responding to that in vogue in Pennsylvania should suc- 
ceed as it would not only protect remote districts against 
lawlessness in all its forms, but would subject violators 
of the Conservation Law to an incessant and effective 
cross-fire. 

The members of all protective associations, individ- 
ually and collectively, can help to furnish funds for these 
increases of policing forces by insisting on the require- 
ment of a proper combination, angling, hunting and trap- 
ping license. 

It has been urged and it seems proper that the Work- 
men's Compensation Law should be so amended as to 
expressly include within the benefits of its provisions all 
game protectors a,nd their assistants. 

It has not been deemed a primary duty of protectors 
to arrest for trespasses on posted lands or private parks. 



CHAPTER XVII 



PROCEDURE 

With but few exceptions, all provisions as to penalties, 
fines and punishment for violations of Article V are 
grouped under Section 182 : 

1. Unless a different or other penalty or punishment is herein 
specially prescribed, a person who buys, sells, offers for sale, takes, 
possesses, transports or has in possession for sale or transporta- 
tion any fish, bird or quadruped, shell-fish or crustacean in violet 
tion of any of the provisions of tlie conservation law in relation 
to fish and game, or who violates or who fails to perform any 
duty imposed by any of the provisions of said law, or any lawful 
order, rule or regulation adopted by the commission, is guilty of a 
misdemeanor; and in addition thereto is liable as follows: to a 
penalty of sixtij dollars and an additional j^enalty of twenty-five 
dollars for each fish, bird, quadrupeds, shell-fish or crustacean, 
or part of fish, bird, quadruped, shell-fish or crustacean, bought, 
sold, offered for sale, taken, possessed, transported or had in pos- 
session for sale or transportation in violation thereof. 

2. A person who buys, sells, offers for sale, takes, possesses, 
transports or has in possession for sale or transportation any 
deer, elk, moose, caribou, antelope, beaver or part of any such 
animal in violation of any of the provisions of said law or of 
any lawful rule or regulation of the commission, is guilty of a 
misdemeanor, and in addition thereto is liable as follows : to a 
penalty of one hundred dollars and an additional penalty of one 
hundred dollars for each deer, elk, moose, caribou, antelope, beaver 
or part of any such animal bought, sold, offered for sale, taken, 
possessed, transported or had in possession for sale or transported 
contrary to law. 

3. A person who violates any of the provisions of sections two 
hundred and forty-five, two hundred and forty-seven or two hun- 
dred and forty-eight thereof, shall be guilty of a misdemeanor, 
and in addition thereto is liable as follows: to a penalty of five 
hundred dollars, and an additional penalty of ten dollars for each 
fish taken, killed or possessed in violation thereof. 

[214] 



Peooeduke 215 

4. Any public officer who fails to perform any duty imposed 
by any of the provisions of said law or any lawful rule or regu- 
lation of the commission is guilty of a misdemeanor, unless other- 
wise specifieally prescribed herein, and in addition thereto is liable 
to a penalty of one hundred dollars. 

5. A person who violates any provision of part eleven shall 
be gnilty of a misdemeanor, and shall be liable to exemplary dam- 
ages in the sum of twenty-five dollars for each offense or trespass 
to be recovered by the owner of the lands, or hunting or fishing 
rights thereon, with costs of suit, in addition to the actual damages, 
all of which may be recovered in the same action. The consent in 
xvriting of such owner to hunt or fish on said lands during the open 
season shall be a defense to a prosecution under this section. 

See section 230. 

See sections 153, 154, 169, 185, 246, 291. 

See sections 300-334. 

As to section 182, subdivision 5, see chapter XIX. 

The penalties provided by the law are recoverable in 
civil actions brought by the Commission. 

Fines or imprisonment or both are imposed by way of 
judgment in criminal actions upon either plea or verdict 
of guilty. 

The civil action to recover the penalty, whatever its 
result, is no bar to the criminal action and the criminal 
action whether resulting in acquittal or conviction, is no 
bar to the civil action. 

See section 36. 

People v. Snyder, 90 A. D. 422. 

Either one may precede the other or they may be 
simultaneously commenced and prosecuted. 

The duties of the Deputy Attorney-General and assist- 
ants in respect to litigation in which the Commission is 
involved are defined by Section 9 : 

It shall be the duty of the attorney-general, when requested by 
the commission, to appoint a deputy attorney-general, and such 
assistants as may be necessary, and assign them to the commis- 
sion. The deputy attorney-general shall receive an annual salary 
of five thousand dollars. The salaries of the assistants shall be 



216 Game Law Guide 

fixed by the commission. It shall be the duty of such deputy, 
in the name of the attorney-general, to conduct all prosecutions 
for penalties imposed by the forest, fish and game law or by this 
chapter, and to bring all actions, suits and proceedings, which the 
commission shall be authorized to institute and maintain, and to 
defend all actions, suits and proceedings brought against the 
commission. Such deputy shall also act as counsel to the commis- 
sion. No action, suit or proceeding in which the title to lands 
of the state in forest preserv'e counties shall be involved shall be 
withdrawn or discontinued, nor shall judgment therein against 
the state be entered on consent except on special permission of 
the court and after application made in open court on which appli- 
cation all the terms and conditions of the settlement shall be fully 
stated in writing and the reasons therefor set forth at length. 

Compare sections 50, 51, 26, 29, 36, 169. 

In 1895 it was held that litigation involving title to 
State lands could not be compromised by allowing judg- 
ment to be entered therein adverse to the State. 

Report of Attorney-General, 1895, page 345. 

On the contrary, in 1910 the power of the old commis- 
sion to settle on a compromise basis, out of court, with- 
out action instituted, claims in favor of or against the 
State was generally upheld. 

Report of Attorney-General, 1910, page 772. 
See discussion under section 50, and Peoj)le v. Santa Clara 
Lumber Co., 213 N. Y. 61. 

From Sections 9 and 26 it is manifest that the Commis- 
sion determines when civil actions shall be brought to 
recover penalties and takes exclusive charge of them 
through the Deputy Attorney-General. For this reason, 
game protectors have no immediate concern with civil 
actions as such except upon compromise thereof as 
provided in Section 36. 

Section 26 provides : 

Actions for penalties for violations of any provision of this 
chapter shall be in the name of the " People of the State of New 



Peocedure 217 

York; " and must be brought on the order of the commission, and 
may be compromised, settled and discontinued as provided in 
section riine of this chapter. Such actions, if in justices' courts, 
may be brought in any town of the county in which the penalty 
is incurred, or, if the defendant resides in another county, in any 
town of the county in which the defendant resides. 

See section 36, and see People v. Robbins, 39 Hun 137. 
Compare section 2863 of the Code of Civil Procedure. 
See Leonard v. Ehrich, 40 Hun 460; and 
People V. Haskell, 62 Supp. 654. 

There is small occasion for the commencement of civil 
actions in justices' courts due to the provisions of 
Section 27 as to costs: 

In case of recovery of any amount in an action brought for a 
penalty under this chapter or in any action authorized by this 
chapter, in any court of record the people shall be entitled to 
recover full costs, of course, and at the rates as provided for by 
section thirty-two hundred and fifty-one of the code of civil pro- 
cedure, together with witnesses' fees and other disbursements. 

Section 27 overrides section 3228 of the Code of Civil 
Procedure, as to civil actions brought under the Con- 
servation Law. 

Compare People v. Strauss, 48 A. D. 198. 

The jurisdiction of a Justice's Court is limited to a 
grant of judgment not to exceed $200, but a justice of the 
peace has power to allow an amendment of the complaint 
reducing the amount demanded to one within his 
jurisdiction. 

People V. Wait, 114 A. D. 334. 

As to confession of judgment before magistrates hold- 
ing Justices' Courts or Courts of Special Sessions, see 
Section 36. 

The jurisdiction of the Supreme Court is governed by 
Sections 217-218 ; 982-991 of the Code of Civil Procedure. 



218 Game Law Guide 

The jurisdiction of County Courts in cases where the 
defendant is a resident of the county in which the action 
is brought is governed by Section 340 of the Code of 
Civil Procedure. 

In cases where civil actions are brought before Jus- 
tices' Courts and where appeals are taken to County 
Court demanding a new trial as a matter of right, intri- 
cate questions of costs may arise where there is any offer 
in the field. 

See sections 3044-30G7, 3068-3073, of the Code of Civil 

Procedure. 
See McKuslde v. Hendrickson, 128 N. Y. 555. 
See Pierano v. Merritt, 148 N. Y. 289. 

It has been held that no presumption can be enter- 
tained that the action is brought by the proper party. 

People V. Belknap, 58 Hun 241. 
See section 185, subdivisions 10-12. 

As to civil actions for the recovery of exemplary dam- 
ages brought by the owner of posted or parked lands 
against trespassers, see Chapter XIX. 

The civil action for a penalty must be brought within 
two years except that under Section 185, subdivision 10, 
where brought by an individual on the order of the 
Commission, it seems it must be brought within one year. 

Sections 383 and 387 of the Code of Civil Procedure. 
See People v. Robbins, 39 Hun 137. 

Actions for penalties may be joined in the same 
complaint. 

See sections 484-10; 2863 and 2937 of the Code of CivU 
Procedure. 

It seems to be unnecessary to prove intent in the civil 
action for the penalty. 



People v. Snyder, 90 A. D. 422. 
People v. Redwood, 140 A. D. 814. 



Peoceduee 219 

Every person whether actually engaged in a violation 
or only counseling, aiding or assisting in any way is 
separately and severally liable for the penalty. It is no 
defense that others concerned are not joined or that 
others involved have paid the penalty. 

People V. White, 124 A. D. 79. 

See definitions of hunting and taking, sections 380-26, 27. 

The statute being highly penal is ordinarily to be 
strictly construed in favor of the defendant and against 
the State. 

In actions to recover the penalty the case must be 
proved by a fair preponderance of evidence as distin- 
guished from the criminal action in which the guilt of 
the accused must be established beyond a reasonable but 
not a captious doubt. 

Wherever by the express terms of any section, certain 
circumstances raise a presumption of violation or where 
a proviso or exception is made, the burden of rebutting 
the presumption or bringing the acts in question within 
the proviso or exception rests with the defendant, but 
the burden of proof upon the whole case rests with the 
State. 

See sections 181, 282, 196, 199, etc. 
See People v. Chamberlain, 92 M. 720. 
Richardson v. State, 77 Arkansas 323. 

The law consistently provides that each violation 
carries with it the prescribed penalty and an additional 
penalty for each fish, bird or quadruped taken in the 
unlawful manner or as a result of the unlawful act. 
There can therefore be no nice distinctions drawn on the 
question of cumulative penalties. 

See People v. Spencer, 201 N. Y. 105. 

Assuming that a person on properly posted lands, in 
the close season, takes by angling five five-inch trout; 



220 Game Law Guide 

then draws off water by diverting the stream ; then nets 
ten trout, catches ten w^ith his hands and dynamites the 
rest taking in all fifty fish, half of which are under size 
and the total catch w^eighing fifteen pounds; for how 
many penalties can he be held and to which of the distinct 
violations are the additional penalties to be superadded? 

The civil action to recover exemplary damages for the 
trespass may be brought by the owner of the lands or of 
the exclusive fishing rights. 

He can be held by the State under separate counts for 
at least five distinct penalties and to each penalty can be 
superadded the additional penalty for each fish taken in 
that particular unlawful manner. 

The violations as to the pound and length limit, it has 
been claimed, should properly be eliminated due to the 
fact that the catch was made in close season. 

Assuming that no proof could be made by the State as 
to the exact number of fish taken by each unlawful 
method, it seems, additional penalties could be claimed 
for all of the fish under each distinct violation and a jury 
would have to determine on the evidence that intricate 
question of how many fish were taken in each particular 
manner, best solved perhaps by concentrating the addi- 
tional penalties under the violation which carries the 
heaviest penalty for each individual fish unless the 
defendant could satisfactorily apportion them. 

Many illustrations along this line might be made. 

The general provisions of the Code of Civil Procedure 
governing the satisfaction of judgments in civil actions 
are embraced within Sections 1487-1495; 3032-3035. 

A judgment in an action for a penalty must first be 
satisfied by an execution against property and if not so 
satisfied it may be satisfied by an execution against the 
person. 

It was held in the case of People v. Monaco, 54 Misc. 25, 
that to deprive a person taken on a body execution of 



Procedure 221 

the right to the liberties of the jail the statute should 
expressly so state. 

Accordingly Section 28 governing the enforcement of 
judgments in civil actions for the penalty now reads as 
follows : 

Judgments recovered under this chapter may be enforced by 
execution against the person as provided by the code of civil pro- 
cedure. A person taken into custody upon such an execution 
shall not he admitted to the liberties of the jail and shall be con- 
fined for not less than one day, and at the rate of one day for 
each dollar of the amount of the judgment recovered. No person 
shall be imprisoned more than once, or for more than six months 
on the same judgment. Imprisonment shall not operate to satisfy 
a judgment. 

See section 36. 

Civil actions if brought against infants through the 
appointment of guardians ad litem, are governed by 
Sections 471 and 2888 of the Code of Civil Procedure. 

See section 554 of the Code of Civil Procedure. 

A parent or guardian of an infant is as a rule not liable 
for the wrongful acts of the infant unless the infant's 
acts are committed at the instigation or through the 
coercion of the parent or guardian. 

Compare sections 176, 380-26 and 27. 

What is of paramount importance is the consideration 
of matters of jurisdiction and procedure in criminal 
actions. From this wide field only, a choice of the more 
salient propositions can be presented. 

Violations of the Conservation Law as such, with few 
exceptions, constitute crimes of the class of misdemeanor. 

Compare section 54, subdivision 3. 

In misdemeanors, all participants are principals. 

See section 27 of the Penal Law. 



222 Game Law Guide 

A cliild under the age of seven years is not capable of 
committing crime (doli incapax). A child of the age of 
seven years and under the age of twelve years is pre- 
sumed to be incapable of crime, but the presumption may 
be removed by proof that he had sufficient capacity to 
understand the act or neglect charged against him and 
to know its wrongfulness. A child of the age of 
twelve years or more is presumed to be capable of the 
commission of crime. 

See sections 81G-817 of the Penal Law. 

The circumstances under which arrests may be made 
by private persons are set forth in Sections 183-185 of 
the Criminal Code: 

§ 183. A private person may arrest another: 

1. For a crime committed or attempted in his presence; 

2. When a person arrested has committed a felony, although 
not in his i^resence. 

§ 184. A private jjerson, before making an arrest, must inform 
the person to be arrested of the cause thereof, and require him to 
submit, except when he is in the actual commission of the crime, or 
when he is arrested on pursuit immediately after its commission. 

§ 185. A private person, who has arrested another for the com- 
mission of a crime, must, without unnecessary delay, take him before 
a magistrate, or deliver him to a peace officer. 

For offenses other than those defined by the Conserva- 
tion Law, game protectors who are not peace officers as 
well, may make arrests pursuant to the above provisions 
only. 

See Section 169 as to the powers of game protectors in 
the matter of the enforcement of the Conservation Law. 

Sections 177-182 of the Criminal Code prescribe the 
conditions under which arrests may be made by an officer 
without a warrant: 

§ 177. A peace officer may, without a warrant, arrest a person: 

1. For a crime, committed or attempted in his presence; 

2. When the person arrested has committed a felony, although 
not in his presence. 



Procedure 223 

3. When a felony has in fact been committed, and he has rea- 
sonable cause for believing the person to be arrested to have 
committed it. 

§ 178. To make an arrest, as provided in the last section, the 
officer may break open an outer or inner door or window of a build- 
ing, if, after notice of his office and purpose, he be refused admittance. 

§ 179. He may also, at night, without a warrant, arrest any 
I^erson whom he has reasonable cause for believing to have com- 
mitted a felony, and is justified in making the arrest, though it after- 
ward api^ear that a felony has been committed, but that the person 
arrested did not commit it. 

§ 180. When arresting a ^jerson without a warrant the officer 
must inform him of the authority of the officer and the cause of the 
arrest, except when the person arrested is in the actual commiseion 
of a crime, or is i^ursued immediately after an escape. 

§ 181. A peace officer may take before a magistrate a person 
who, being engaged in a breach of the peace, is arrested by a 
bystander and delivered to him. 

§ 182. When a crime is committed in the presence of a magis- 
trate, he may, by a verbal or written order, command any person to 
arrest the offender, and may thereupon proceed as if the offender 
had been brought before him on a warrant of arrest. 

In cases of arrest without warrant or where instead of 
arrest, an offender is accorded an opportunity to appear 
before a certain magistrate at a designated time in 
default of which appearance a warrant will be asked for, 
before any further proceedings are had, an information 
should be laid and a deposition made before the magis- 
trate before whom the offender is taken or appears, not 
only for purposes of record, but in all cases to save any 
question of jurisdiction itself; and this is a proper prac- 
tice even where there is a x)lea of guilty interposed or an 
immediate trial had, coupled with a waiver of such 
formalities. 

See People ex rel. Farley v. Crane, 94 A. D. 397. 
People v. Zabor, 103 A. D. 594. 
People V. Burns, 19 M. 680. 



224 Game Law Guide 

Unlawful and malicious arrests constitute oppression 
and are made misdemeanors by Section 854 of the Penal 
Law. I 

Magistrates are those officers who have power to issue 
warrants for the arrest of persons charged with crime 
and among those enumerated are justices of the peace, 
police justices, and recorders of cities. 

See sections 146-147 of the Criminal Code. 

The preliminaries to the issuance by magistrates of 
warrants based on information and deposition are pre- 
scribed by Sections 145-166 of the Criminal Code and 
the more important of those provisions are as follows: 

§ 145. Tlie information is the allegation made to a magistrate that 
a person has been guilty of some designated crime. 

The information should designate by name or identify 
by description the person accused of the crime charged 
and cannot either as to the fact of the crime or the iden- 
tity of the offender, be based solely on information and 
belief. The sources of information and grounds of 
belief must be stated and sufficient facts to show that the 
complainant is acting in good faith xnust be set forth. 

People ex rel. Livingston v. Wyatt, 186 N. Y. 383. 

Tanzer v. Breen, 139 A. D. 10. 

People ex rel. Laird v. Hannan, 37 Supp. 702. 

Further provisions are viz. : 

§ 148. When an information is laid before a magistrate, of the 
commission of a crime, he must examine on oath the informant and 
prosecutor, and any witnesses he may produce, and take their deposi- 
tions in writing and cause them to be subscribed by the parties making 
them. 

§ 149. The depositions must set forth the facts stated by the prose- 
cutor and his witnesses, tending to establish the commission of the 
crime and the guilt of the defendant. 

§ 150. If the magistrate be satisfied therefrom, that the crime 
complained of has been committed, and that there is reasonable ground 



Procedure 225 

to believe that the defendant has committed it, he must issue a warrant 
of arrest. 

§ 152. The warrant must specify the name of the defendant, or if 
it be unknown to the magistrate, the defendant may be designated 
therein by any name. It must also state an offense in respect to which 
the magistrate has authority to issue the warrant, and the time of 
issuing it, and the city, town or village where it is issued, and be 
signed by the magistrate with his name of office. 

This provision together with or apart from others does 
not seem to authorize what are popularly and ordinarily 
termed " John Doe " proceedings or inquiries. On this 
question there is considerable confusion of authority. 

Compare sections 20-25. 

Where a crime has actually been committed and the 
name of the offender is unknown, it seems that the 
information and warrant or the papers in the proceeding 
must so describe and identify him as to enable a witness 
subpoenaed on the proceeding, trial or examination to 
determine that he himself is not the person accused. 

Magistrates, except in certain quasi criminal proceed- 
ings can apparently lawfully hold only trials of or exami- 
nations to hold for the action of the grand jury, named, 
identified or described persons charged with the actual 
commission of crime. 

In cases where there is uncertainty as to whether a 
crime has been committed or where the offender's iden- 
tity is unknown, the inquiry or investigation can, it 
appears, lawfully be conducted only before a grand jury. 

People ex rel. Livingston v. Wyatt, 186 N. Y. 383. 
People ex rel. Willett v. Quinn, 150 A. D. 813. 
People ex rel. Sampson v. Dunning, 113 A. D. 35. 
People ex rel. Brown v. Tighe, 146 A. D. 491. 
People ex rel. Friedman v. Cornell, 37 M. 676. 
Scheer v. Keown, 29 Wis. 586. 
People ex rel. Lewisohn, 176 N. Y. 253. 

In cases of violations of the Conservation Law magis- 
trates holding courts of Special Sessions have jurisdic- 
15 



226 - Game Law Guide 

tion, it seems, only to try and to determine the guilt of 
named, described or identified persons definitely charged 
with the actual commission of the offense. 

See section 31. 

But it was intimated by Judge Chase, however, in 
Livingston v. Wyatt that a so-called '' John Doe " pro- 
ceeding should be allowed where a crime had actually 
been committed but the offender's identity had to be 
ascertained, and upon the strength of that statement such 
proceedings are resorted to in extraordinary cases as a 
claimed matter of right. 

The Code goes on to say: 

§ 153. The warrant must be directed to, and executed by, a peace 
officer. 

§ 154. A peace officer is a sheriff of a county, or his under- 
sheriff or deputy, or a constable, marshal, police constable or policeman 
of a city, town or village. 

See section 169 as to powers of game protectors. 

Where a recorder of a city issues a warrant it may be 
directed to and executed by any peace officer in the State. 

See section 155 of the Criminal Code. 

Other provisions are : 

§ 156. If it be issued by any other magistrate, it may be directed 
generally to any peace officer in the county in which it is issued, and 
may be executed in that county; or if the defendant be in another 
county, it may be executed therein, upon the written direction of a 
magistrate of such other county indorsed upon the warrant, signed by 
him with his name of office, and dated at the city, town or village 
where it is made, to the following effect : " This warrant may be exe- 
cuted in the county of Monroe" (or as the ease may be). 

§ 157. The endorsement mentioned in the last section cannot, how- 
ever, be made, unless upon the oath of a credible witness, in writing, 
indorsed on or annexed to the warrant, joroving the handwriting of 
the magistrate by whom it was issued. Upon this proof, the magis- 
trate indorsing the warrant is exempted from liability to a civil or 



Pkoceduke 227 

criminal action, though it afterward appear that the warrant was ille- 
gally or improperly issued. 

§ 159. If the crime charged in the warrant be a misdemeanor, 
and the defendant be arrested in another county, the oflficer must, upon 
being required by the defendant, take him before a magistrate in that 
county, who must admit the defendant to bail, for his appearance 
before the magistrate named in the warrant, and take bail from him 
accordingly. 

Where the defendant is required to be taken before the 
magistrate who issued the warrant, the officer may, if 
that magistrate be absent or unable to act, take the 
defendant before the nearest or most accessible magis- 
trate in the same town in which the magistrate before 
whom the warrant was returnable resides, if there be 
any such magistrate accessible and qualified to act; 
otherwise before the nearest or most accessible magis- 
trate in the same county. 

See section 164 of the Criminal Code. 

An important provision along this line is : 

§ 166. If the defendant be taken before a magistrate other than 
the one who issued the warrant, the depositions on which the warrant 
was granted must be sent to that magistrate, or if they cannot be pro- 
cured, the prosecutor and his witnesses must be summoned to give 
their testimony anew. 

Arrests made by an officer under a warrant are 
governed by Sections 167-176 of the Criminal Code : 

§ 167. Arrest is the taking of a person into custody that he may 
be held to answer for a crime. 
§ 168. An arrest may be: 

1. By a peace officer, under a warrant; 

2. By a peace officer without warrant; or 

3. By a private person. 

§ 169. Every person must aid an officer in the execution of a 
warrant, if the officer require his aid and be present and acting in its 
execution. 

§ 170. If the crime charged be a felony, the arrest may be made 
on any day, and at any time of the day or during any night. If it 



228 Game Law Guide 

be a misdemeanor, the arrest cannot be made on Sunday, or at night, 
unless by direction of the magistrate indorsed upon the warrant. 

See section 5 of the Judiciary Law. 

§ 1'71. An arrest is made by an actual restraint of the person of 
the defendant, or by his submission to the custody of the officer. 

§ 1'72. The defendant is not to be subjected to any more restraint 
than is necessary for liis arrest and detention. 

§ 173. The defendant must be informed by the officer that he 
acts under the authority of the warrant, and he must also show the 
warrant if required. 

§ 174:. If, after notice of intention to arrest the defendant, he 
either flee or forcibly resist the officer may use all necessary means to 
effect the arrest. 

§ 175. The officer may break open an outer or inner door or 
window of any building, to execute the warrant, if, after notice of 
his authority and purposes, he be refused admittance. 

§ 176. An officer may break open an outer or inner door or win- 
dow of any building, for the purpose of liberating a person, who, 
having entered for the purpose of making an arrest, is detained 
therein, or when necessary for his own liberation. 

Sections 186 and 187 of the Criminal Code provide : 

If a person arrested escape or be rescued the person, from whose 
custody he escaped or was rescued, may immediately pursue and retake 
him, at any time, and in any place in the state. 

To retake the person escaping or rescued, the person pursuing may, 
after notice of his intention and refusal of admittance, break open an 
outer or inner door or window of a building. 

Such force as may be necessary to require an offender 
to submit to an arrest is justifiable. 

Penal Law, section 246 
Section 165 of the Criminal Code provides : 

The defendant must in all cases be taken before the magistrate with- 
out necessary delay, and he may give bail at any hour of the day or 
night. 

Section 5 of the Judiciary Law provides that a court 
shall not be opened or transact any business on Sunday, 
except to receive a verdict or discharge a jury. But the 



Peoceduee 229 

prohibition does not apply to prevent the exercise of the 
jurisdiction of a magistrate where it is necessary to 
preserve the peace, or, in a criminal case, to arrest, coriv- 
mit or discharge a person charged with an offense. 

See People ex rel. Burke v. Fox, 205 N. Y. 490. 
Section 382 provides: 

This article is intended to be a restatement of existing law with 
such changes as clearly appear. (The term of office of the present 
employees of the commission in the division of fish and game shall 
not be affected, except as herein specifically provided.) Nothing 
in this article shall be construed as amending or repealing any of 
the pro\asions of the code of criminal procedure nor of the penal 
law. Any of the provisions of tliis article inconsistent with the 
provisions of the code of criminal procedure or of the penal law 
shall be held to be effective for the purposes of this article only. 

This amended section disposes of many troublesome 
questions formerly arising on the interpretation of 
different sections of the Penal Law, particularly Section 
1937 of the Penal Law, and the Criminal Code, especially 
Sections 56, 39-1, 211, 254 and 717. 

Section 31 provides : 

Subject to the power of removal provided in the code of criminal 
procedure, courts of special sessions and police courts shall have, 
in the first instance, jurisdiction of offenses committed under this 
chapter within their respective counties. A warrant shall be return- 
able before the magistrate isstiing the same. And, for the purpose 
of this chapter only, the jurisdiction of the courts mentioned in 
this section is extended as to misdemeanors to permit the imposi- 
tion of the -fines and sentences authorized by this chapter. 

Courts of special sessions are courts held by qualified 
justices of the peace and police justices for the trial of 
such criminal offenses as come within their jurisdiction. 

Compare sections 62 and 74 of the Criminal Code. 

This provision as to jurisdiction appears to apply to 
prosecutions for trespass on posted lands. 



230 Game Law Guide 

Where an offender is brought before one of the Courts 
designated by Section 31, he should be informed of his 
right to ask and he may ask for an adjournment of not 
less than five nor more than ten days during which to 
make an effort to secure a certificate from the county 
judge or a justice of the Supreme Court to the effect that 
reason exists for the presentation of his case to a grand 
jury. 

See sections 57-58 of the Criminal Code. 
People V. Barry, 16 A. D. 462. 

Failure to notify the defendant is no ground for rever- 
sal where a plea of guilty is made. 
People V. Loomis, 65 M'. 156. 

If he does not ask for such adjournment or fails to 
secure the certificate, the magistrate holding the court 
shall proceed with the case. 

Such an application for the presentation of the case to 
a grand jury should be made where for any reason the 
magistrate may be needed as a material witness for 
either side. 

Compare section 3151 of the Civil Code. 

Sections 211 and 56 of the Criminal Code, under which 
it was claimed that a defendant could be tried by Special 
Sessions for game law violations only when he elected 
to be so tried, have been held to be inapplicable to cases 
under the Conservation Law. 

People V. McKenzie, 69 M. 540. 
Compare People v. Austin, 49 Hun, 396. 
People V. Knatt, 156 N. Y. 302. 
People V. Vert, 134 A. D. 790. 

The offender may be taken before any magistrate in 
the county within which the offense was committed. The 
limitation of Section 151 of the Criminal Code requiring 
trials to be had in the town where the offense was com- 
mitted have been held inapplicable to cases under the 



Procedure 231 

Conservation Law and a justice of the peace or any mag- 
istrate holding a Court of Special Sessions may issue a 
warrant for and try a person accused of a violation of 
the Conservation Law, committed anywhere within the 
county where the magistrate resides. 

People V. McKenzie, 69 M. 540. 
People V. Keen an, 80 M. 539. 

Exclusive jurisdiction is not given to courts of special 
sessions as was the case under Section 24 of the Forest, 
Fish and Game Law. ' ' Jurisdiction in the first 
instance ' ' together with the other language in Section 31 
can hardly be held to mean ' ' exclusive jurisdiction. ' ' 

Compare People v. McCarthy, 168 N. Y. 549. 
Austin V. Vrooman, 128 N. Y. 229. 
People V. Austin, 49 Hun 396. 
People V. Dillon, 197 N. Y. 254. 

See section 56-27 of the Criminal Code and section 2186 
of the Penal Law. 

For this reason Section 39, subdivision 1 of the Crim- 
inal Code does not appear to apply to cases arising under 
the Conservation Law and they may, it seems, if the 
State so elects, be tried by indictment in the first instance 
under Section 254, etc., of the Criminal Code instead of 
before a Court of Special Sessions in the first instance. 

Compare People v. Snyder, 90 A. D. 422. 

Sections 134—137 of the Criminal Code as to crimes 
committed within five hundred yards of a county bound- 
ary being triable in either county, and jurisdiction as to 
crimes committed on trains or vessels seem to apply only 
to criminal actions prosecuted by indictment. 

People V. Bates, 38 Hun 180. 
People V. Kyser, 78 Misc. 68. 



232 Game Law Guide 

Under the old law, particularly the law of 1888, civil 
actions for the enforcement of the Game Law could be 
tried in the county where committed or in an adjoining 
county. 

See People v. Rouse, 15 Supp. 414. 

Compare sections 982-991 of the Civil Code as to place of 
trial and change of venue. 

Misdemeanors must be prosecuted within two years 
from the time of the commission of the offense; 
otherwise they are barred by the statute. 

See section 142 of the Criminal Code. 

Cases involving children under the age of sixteen 
years are to be disposed of separately in Juvenile Court 
Sessions. 

See sections 487 and 2186, Penal Law, and 56-27 of the 
Criminal Code. 

The general procedure in Courts of Special Sessions 
after the defendant has been brought before the magis- 
trate is governed by Sections 699-740b of the Criminal 

Code. ^ ^ ■ ir'J^Bl 

Section 188 of the Criminal Code provides : 

When the defendant is brought before a magistrate upon an arrest 
either with or without warrant on a charge of having committed a 
crime, the magistrate must immediately inform him, of the charge 
against him, and of his right to the aid of counsel in every stage of 
the proceedings and before any further proceedings are had. 

The general principle embodied in the above provision 
is applicable to proceedings in Courts of Special 
Sessions. 

Compare section 8 of the Criminal Code on the matters of 
trial, counsel, witnesses, etc. 

§ 699. In cases in which the courts of si)ecial sessions or police 
courts have jurisdiction, when the defendant is brought before the 
magistrate, the charge against him must be distinctly read to him and 
he must be required to plead thereto. 



Procedure 233 

It would seem that in cases of arrest without warrant 
jurisdiction attaches upon arraignment and plea and 
no change of magistrate is permissible and this would 
apply where prosecutions have been commenced at the 
instance of other persons than the game protectors. 

See People ex rel. Lotz v. Norton, 76 Hun, 7. 
See sections 57, 164, 750 Criminal Code and section 3151 
Civil Code. 

It is further provided: 

§ 101. Upon a plea other than a plea of guilty, if the defendant 
does not demand a trial by jury, the court must proceed to try the issue. 

§ 703. Before the court hears any testimony upon the trial, the 
defendant may demand a trial by jury. 

§ 706. The court must then draw out six of the ballots, succes- 
sively ; and if any of the persons whose names are drawn do not appear, 
or are challenged and set aside, such further number must be drawn as 
will make a jury of six, after all legal challenges have been allowed. 

§ 707. The same challenges may be taken by either party, to the 
panel of jurors or to an individual juror, as on the trial of an indict- 
ment for a misdemeanor, so far as applicable; and the challenge must, 
in all cases, be tried by the court. 

Five peremptory challenges in addition to those for cause are allowed 
by section 373 Criminal Code. 

§ 708. Jl six of the jurors summoned do not attend, or be not 
obtained, the court may direct the officer to summon any of the 
bystanders, or others who may be competent, and against whom there 
is no sufficient cause of challenge, to act as jurors. 

§ 710. When six jurors appear and are accepted, they constitute 
the jury. 

§ 712. After the jury are sworn, they must sit together and hear 
the proofs and allegations of the parties, which must be delivered in 
public, and in the presence of the defendant. 

By Section 356 of the Criminal Code where the trial is 
upon indictment, the case if it be one of misdemeanor 
may be tried in the absence of the defendant. 

The Code proceeds to prescribe as follows : 

§ 714. When the jury have agreed on their verdict, they must 
deliver it publicly to the court, which must enter it in its minutes. 



234 Game Law Guide 

§ 715. The jury cannot be discharged, after the cause is sub- 
mitted to them, until they have agreed upon and rendered their ver- 
dict, unless for some cause within the meaning of sections four hun- 
dred and twenty-eight and four hundred and twenty-nine, the court 
sooner discharge them. 

See those sections as to disagreement of the jury, injurj' to 
one of the jurors or the defendant, etc., and discharge by 
consent. 

§ 716. If the jury be discharged, as provided in the last section, 
the court may proceed again to the trial, in the same manner as upon 
the first trial; and so on until a verdict is rendered. 

In case of conviction the certificate thereof must be made during the 
session of the court and cannot be made by the justice after the court 
organized to try the cause has ceased to exist. 

People ex rel. Cook v. Smith, 9 N. Y. Supp. 181. 

§ 723. Within twenty days after the conviction, the court must 
cause the certificate to be filed in the office of the clerk of the county. 

§ 724. The certificate, made and filed as prescribed in the last two 
sections, or a certified copy thereof, is conclusive evidence of the facts 
stated therein. 

§ 729. The court may issue subpoenas for witnesses, as provided 
in section six hundred and eight, and punish disobedience thereof, as 
provided in section six hundred and nineteen. 

Section 608 of the Criminal Code provides : 

A magistrate, before whom an information is laid, may issue sub- 
poenas, subscribed by him, for witnesses within the state either on 
behalf of the people or of the defendant. 

Section 731 of the Criminal Code provides : 

No fees are payable to a juror or witness, for his service or attend- 
ance in a court of special sessions. 

The fees of justices of the peace and constables in crim- 
inal cases are governed by Sections 740 and 740b. 

Some of the main propositions as to evidence and 
proof in criminal cases as contained in sections of the 
Criminal Code are as follows: 

§ 389. A defendant in a criminal action is presumed to be inno- 
cent until the contrary be proved; and in case of reasonable doubt 
whether his guilt is satisfactorily shown, he is entitled to an acquittal. 



Peocedure 235 

It is now well settled that evidence of good character 
may in and of itself raise a reasonable doubt which would 
warrant a jury in acquitting a defendant no matter how 
strong the evidence against him may be. 

See authorities cited under the above section in Criminal 
Code. 

Further provisions are made, viz : 

§ 393, The defendant in all cases may testify as a witness in his 
own behalf, but his neglect or refusal to testify does not create any 
presumption against him. 

§ 395. A confession of a defendant, whether in the course of 
judicial proceedings or to a private person, can be given in evidence 
against him, unless made under the influence of fear produced by 
threats, or unless made upon a stipulation of the district attorney, 
that he shall not be prosecuted therefor ; but is not sufficient to warrant 
his conviction without additional proof that the crime charged has been 
committed. 

A prior plea of guilty in the same case may be proved. 

See People v. Jacobs, 165 A. D. 721. 
Compare section 36. 

Section 399 of the Criminal Code provides : 

A conviction cannot be had upon the testimony of an accomplice, 
unless he be corroborated by such other evidence as tends to connect 
the defendant with the commission of the crime. 

Game protectors engaged in detective work and par- 
ticipating in a violation merely for purposes of procuring 
evidence are not accomplices. 

Compare People v. Noelke, 94 N. Y. 137. 
People V. Levoy, 72 A. D. 55. 

Penal statutes are to be strictly construed. 

Compare section 21 of the Penal Law. 
People V. Keenan, 80 M. 539. 

Prior convictions of any crime may be proved against 
a defendant to discredit him, but the mere fact of arrest 
or indictment cannot. 

People V. Cascone, 185 N. Y. 317. 



236 Game Law Guide 

It would seem that the commission of other violations 
of the Conservation Law could be proved under the rule 
laid down in People v. Molineux, 168 N. Y. 264. 

A party cannot impeach his own witness. Hearsay 
evidence is excluded and while ignorance of law is 
no defense or excuse, ignorance of fact under certain 
circumstances might be. 

An important provision as to witnesses in both civil 
and criminal actions is contained in Section 35 : 

No person shall be excused from testifying or producing any 
books, papers or other documents in any civil or criminal action, 
or proceeding taken or had under this chapter, upon the ground 
that his testimony might tend to convict him of a crime, or to 
subject him to a penalty or forfeiture. But no person shall be 
prosecuted, punished or subjected to any penalty or forfeiture for 
or on account of any act, transaction, matter or thing concerning 
which he shall under oath, have testified or produced documentary 
evidence, and no testimony so given or produced shall be received 
against him, upon any criminal investigation or proceeding; 
provided, however, that no person so testifying shall be exempt 
from prosecution or punishment for any perjury committed by 
him in his testimony. Nothing herein contained is intended to 
give, or shall be construed as in any manner giving, unto any cor- 
poration, immunity of any kind. 

The immunity and protection afforded by the above 
section appear to be broad enough to answer the 
requirements. 

Chappell V. Chappell, 116 A. D. 573. 

People ex rel. Lewisohn, 176 N. Y. 253. 

People V. Cahill, 193 N. Y. 232. 

People ex rel. Ferguson v. Reardon, 197 N. Y. 236. 

Counselman v. Hitchcock, 142 U. S. 564. 

People v. Anhut, 162 A. D. 517. 

Compare section 25, chapter 1. 

Communications between attorneys and third persons 
not their clients are not privileged under Section 835 of 
the Code of Civil Procedure. 

See Report of Attorney-General, 1910, page 399. 



Peocedure 237 

One of the most troublesome questions in connection 
with criminal actions, as distinguished from civil actions 
to recover penalties, is that of jeopardy. 

The State Constitution provides that no person shall 
be tivice put in jeopardy for the same offense. 

New York State Constitution, article I, section 6. 
See section 32 of the Penal Law. 
See U. S. Constitution, amendment V. 

By what appears to be the iveiglit of the leading 
authorities, jeopardy has been said to attach or occur 
when by a court of competent jurisdiction, a person has 
in a legal manner been once finally convicted or acquitted 
of a certain crime. 

Am. & Eng. Encyc, Vol. 17, pages 584-585, 

A second jeopardy arises where the two offenses in 
question are identical both in law and in fact. 

Am. & Eng. Eneyc, Vol. 17, images 596-597. 
12 Cyc. page 280. 

Assume that a person on Sunday on properly posted 
lands, shoots several English snipe or several waterfowl 
prior to September 16th. 

Under those circumstances, he can be prosecuted for a 
violation of the Penal Law as to Sunday shooting, for a 
violation of the Conservation Law as to trespasses on 
posted lands, for a violation of the Conservation Law as 
to taking birds in close season and also for a violation of 
the Federal Regulations as to closed season. 

The otfenses are committed against different statutes 
and different jurisdictions and are not identical in laio 
regardless of whether they are so in fact or not. 

The same principle would hold true it seems of city or 
village ordinances and valid laws passed by boards of 
supervisors. 

Am. & Eng. Encj^c, Vol. 17, pages 604-605. 
12 Cyc. 288, 289. 



238 Game Law Guide 

Where the same act constitutes a violation of several 
sections of the Conservation Law the test of identity in 
fact is one difficult to apply. 

The true test stated in general terms is that if the 
evidence required to support one charge would of itself 
also support the other, there is an identity in fact. 

Am. & Eng. Eneyc, vol. 17, pages 597-598. 
12 Cyc. 280. 

In view of the fact that any one may institute a prose- 
cution of a person for a misdemeanor, in cases where such 
prosecutions are started on complaint by individuals, the 
game protector should be called in and given charge of 
the case. A conviction otherwise obtained would, how- 
ever, unless collusive or in fraud, constitute jeopardy, 
but the Commission could if dissatisfied with the result 
commence the civil action for the penalty. 

See Bishop on Criminal Law, section 1010. 

See Wharton on Criminal Law and Procedure, page 451. 

State V. Little, 1 N. H. 257. 

Am. & Eng. Encyc, vol. 17, page 593. 

Assume that a person during the close season without 
a license takes five partridges with a gun and six 
partridges by means of nets and sells them all. 

Under the above rule he can be prosecuted for four 
separate offenses: 1st, the taking; 2d, the use of nets; 
3d, the sale, 4tli, the hunting without a license ; the excess 
of the limit is to be disregarded inasmuch as the taking 
is in close season. 

Assume that a person on a trout stream in open season 
draws off water and takes with nets fifteen pounds of 
brook trout and sells them. 

Under the above rule, it seems he can be prosecuted 
for four separate offenses : 1st, the drawing off of the 
water ; 2d, the netting ; 3d, the excess of the limit ; 4th, the 
sale. 



Peocedure 239 

Such separate offenses could, it appears, be included 
in one indictment under separate counts, but an informa- 
tion is not supposed to contain different counts. 

See sections 145, 278, 279 of the Criminal Code, 

Many complicated illustrations along these lines can 
readily be presented. 

Under these rules, it would seem that if the person 
were prosecuted on a picked charge and acquitted, he 
could still be prosecuted on another charge provided the 
evidence required to support the one was not identical 
with the evidence required to support the other. 

Section 32 provides : 

A person convicted of a misdemeanor under this chapter, 
except as otherwise provided herein, shall be punished by a fine 
of not less than ten dollars nor more than one hundred dollars; and 
if such fine is not paid, he shall be imprisoned in a county jail or 
penitentiary until such fine is satisfied; which imprisonment shall 
be at the rate of one day for every dollar of such fine; if any 
person be convicted a second time of a misdemeanor under this 
chapter, except as otherwise provided herein, he shall be punished 
either by a fine of not less than twenty -five dollars nor more than 
one hundred and fifty dollars; or by imprisonment in a county 
jail or penitentiary for not more than one hundred days, or by 
both such fine and imprisonment; if a fine imposed be not paid, he 
shall be imprisoned in a county jail or penitentiary until such fine 
is satisfied, which imprisonment shall be at the rate of one day 
for every dollar of such fine; if a person shall be convicted a 
third time of a misdemeanor under this chapter, unless otherwise 
provided herein, he shall be punished by imprisonment in a county 
jail or penitentiary for not less than ten days nor more than six 
months; and by a fine of not less than ten dollars nor more than 
one hundred dollars; and if the fine imposed be not paid, he 
shall be imprisoned in a county jail or penitentiary until si;ch 
fine is satisfied; which imprisonment shall be at the rate of one 
day for every dollar of such fine and shall be in addition to the 
prison sentence. 



240 GrAME Law Guide 

Cases where sentence is suspended constitute prior 

convictions. 

See section 470b Cr. Code. 

In some of the States upon the conviction the offender 
not only forfeits his license, but is prohibited from 
securing another license during that and the ensuing 
year. 

The above section controls Section 1937 of the Penal 
Law. ' ' || .;: 

See section 36. 

Where a person prior to May 12, 1916, has been con- 
victed of a violation of the old Forest, Fish and Game 
Law, or of the Conservation Law, as distinguished from 
having made a settlement of the civil action for a pen- 
alty; or where a person is convicted after May 12, 1916, 
of a violation committed prior to that date such con- 
viction in either case may, it seems, be charged and 
proved against him as a basis for the increased punish- 
ment provided by Section 32 for second and third con- 
victions, in case of trial for and conviction of a violation 
committed after the amendment took effect. 

The punishment for violations committed prior to 
May 12, 1916, is governed by Section 32 as it read prior 
to the amendment. 

People V. Raymond, 96 N. Y. 38. - . 

People V. Sickles, 156 N. Y. 541. 
Shepard v. People, 25 N. Y. 406. 
Compare section 1941 of the Penal Law. 

A child of more than seven and less than sixteen years 
of age who shall commit any act or omission which if 
committed by an adult would be a crime not punishable 
by death or life imprisonment shall not be deemed guilty 
of any crime, but of juvenile delinquency only. 

See section 2186 of the Penal Law. 
Compare section 1897-3 of the Penal Law. 



Procedure 241 

It seems that neither fine nor ordinary imprisonment 
can be imposed in cases of juvenile delinquency. 

Compare section 2194 of the Penal Law. 

In other cases where a sentence to imprisonment for 
not less than sixty days is imposed, the confinement must 
be in the penitentiary and not in the county jail. 

See section 2196 of tlie Penal Law. 

Section 510 of the Criminal Code provides : 

" When a person is hereafter convicted of a felony, who has been 
before that conviction, convicted in this state of any other crime, he 
may be adjudged by the court, in addition to other punishment inflicted 
upon him, to be an habitual criminal. A person convicted of a mis- 
demeanor, who has been already five times convicted in this state of a 
misdemeanor may be adjudged by the court in addition to, or instead 
of, other punisliment, to be an habitual criminal." 

See sections 512-514 which put such persons under a ban 
as to character, search and arrest. 

Section 470a of the Criminal Code provides : 

" If the judgment be suspended, after a plea or verdict of guilty 
or after a verdict against the defendant upon a plea of former convic- 
tion or acquittal, the court may pronounce judgment at any time 
thereafter within the longest period for which the defendant might 
have been sentenced ; but not after the expiration of such period, unless 
the defendant shall have been convicted of another crime committed 
during such period." 

See sections 470b and 484. 

Appeals to County Court from courts of Special 
Sessions are governed by Sections 749-772 of the Crim- 
inal Code. The following sections are quoted: 

§ 750. "An appeal may be allowed for an erroneous decision or 
determination of law or fact upon the trial and for the purpose of an 
appeal in all cases now pending or hereafter brought, a conviction for 
a criminal offense shall be deemed a final judgment although sentence 
shall have been suspended by the court in which the trial was had or 
otherwise suspended or stayed." 

See chapter 125 of the Laws of 1913. 

16 



242 Game Law Guide 

§ 751. " For the purpose of appealing, the defendant or some one 
on his behalf, must within sixty days after the judgment, or within 
sixty days after the commitment where the appeal is from the latter, 
make an affidavit showing the alleged errors in the proceedings or con- 
viction or commitment complained of, and must within that time 
present it to the county judge or justice of the supreme court, or in 
the city and county of New York, to the recorder or a judge authorized 
to hold a court of general sessions in that city, or in the city of Albany 
to the recorder, and aj^ply thereon for the allowance of the appeal. 

§ 752. " If, in the opinion of the judge, it is proper that the ques- 
tion arising on the appeal should be decided by the county court, he 
must indorse on the affidavit an allowance of the appeal to that court; 
and the defendant, or his attorney, must within five days thereafter, 
serve a copy of the affidavit upon wliich the appeal is granted, together 
with a notice that the same has been allowed, upon the district attorney 
of the county in which the appeal is to be heard." 

Section 764 of the Criminal Code provides : 

"After hearing the appeal if the court must give judgment without 
regard to technical errors or defects which have not prejudiced the 
substantial rights of the defendants, and may render the judgment 
which the court below should have rendered, or may, according to the 
justice of the case, affirm or reverse the judgment in whole or in part, 
as to all or any of the defendants, if there be more than one, or may 
order a new trial, or may modify the sentence." 

An appeal may be allowed on the ground that the 
sentence was excessive. 

People V. Dinehart, 155 A. D. 687. 

§ YGS. " If a new trial be ordered, it may be had in the county 
court in the same manner as upon an issue of fact on an indictment; 
and that court may proceed to judgment and execution, as in an action 
prosecuted by indictment, except that in the city of New York, such 
new trial may be had, in the discretion of the court reversing the 
judgment of conviction, in the magistrates' court wherein the defendant 
was convicted, or in the court reversing the judgment, with or without 
a jury. Where the appeal was from a judgment of commitment made 
under section four hundred and eighty-six of the penal law, the new 
trial shall be had before the county court without a jury." 

Section 36 provides: 

Any regular or special game protector, fisheries protector, fire 
superintendent, forest ranger or inspector, who shall charge a 



Pkocedure 243 

person with any violation under tliis chapter, may take such per- 
son before any magistrate in the county where the violation 
occurred, and thereupon such person may, upon the consent of 
the representative of the conservation commission making the 
charge, compromise and settle his liability for civil penalties under 
this chapter, for an amount agreed upon between said magistrate, 
the representative of the commission and the person charged with 
such violation, which amount shall not be less than ten dollars nor 
more than the amount for which such person would be liable in a 
civil action for penalties. If such compromise be made such per- 
son shall forthwith subscribe his name to a statement setting 
forth the facts constituting such violation, the amount agreed upon, 
and that a judgment may be entered against him for that sum. 
Upon said statement being sworn to before and filed with said 
magistrate he shall forthwith enter in his civil docket a record 
of the proceedings and the amount of the judgment. 

Said justice shall upon the entry of such judgment be entitled 
to a fee of one dollar to be paid by the person charged with such 
violation. 

A judgment entered as provided herein may be enforced by an 
execution against the property of the defendant; but no body 
execution shall issue thereon. Such judgment shall be a bar to a 
criminal action for the same violation, if satisfied within thirty 
days from the date of the entry thereof. 

See section 395 of the Criminal Code. 

It was held in the case of Pollock v. Aldrich, 17 How- 
ard's Practice 109 that a justice of the peace could take 
judgment by confession anywhere in the county in which 
he resided. 

Under Section 2864 of the Code of Civil Procedure, a 

justice of the peace may take judgment by confession 

for and in a sum not to exceed five hundred dollars, with 

costs. 

See sections 3010-3012. 

A settlement made pursuant to Section 36 does not 
constitute a conviction to be availed of as a first offense 
under Section 32. 

Section 29 provides: 

Moneys received in an action for a penalty brought under 
article five of this chapter, or upon the settlement or compromise 



244 Game Law Guide 

thereof, and fines for violations of any of the provisions of said 
article shall be paid within thirty days after the receipt thereof 
to the commission. The commission shall apply so much thereof 
as may be necessary to the payment of the expenses of collection 
and shall pay one-half of the balance, in cases brought by special 
game protectors, to the special game protector upon whose informa- 
tion the action was brought. Regular protectors shall not receive 
moieties. The commission in its discretion may settle or compromise 
any action to recover any penalty provided for in said article or a 
cause of action therefor, at such sum as it may deem advantageous 
to the state. The commission may, out of moneys arising from such 
fines or penalties, pay the fees of magistrates and constables for 
services performed in criminal actions brought upon information 
of a game protector, district forest ranger, forest ranger or fire 
warden. 

See section 171. 

See section 185-10. 

See sections 9, 26, 3C and 169, 

Prior to the enactment of Chapter 130 of the Laws of 
1908 game protectors were compensated on the basis of 
moieties. ; '^;'[^i.| 

The above section seems to apply to fines collected for 
trespasses on posted lands. 

Compare Rockefeller v. Lamora, 106 A. D. 348. 

In cases where prosecutions result in no fine, fees are 
to be charged against the town in which the offense was 
committed. 

Attorney-General's Report, 1896, page 234. 
See sections 171 and 240 of the Town Law. 

For this reason it seems desirable where practicable 
to prosecute offenders before magistrates in the town 
where the violation was committed. 

Section 30 provides: 

Moneys received in actions for penalties brought under article 
four of this chajDter shall be paid to the commission, who shall 
apply so much thereof as may be necessary to the payment of the 
expenses of collections. The balance of such receipts shall be avail- 



Proceduee 245 

able for enforcing the various provisions of law for the proteetiou 
of forests against fire. 

This section does not appear to apply to fines. 
Section 34 provides as to search warrants : 

Any justice of the peace, police justice, county judge, judge oj, 
a city court or magistrate having criminal jurisdiction shall, if it 
appear probable that fish, birds or game taken or possessed con' 
trary to the provisions of article five of this chapter are concealed, 
issue a search warrant for the discovery thereof, in accordance 
with the practice provided in title two of part six of the code of 
criminal procedure, so far as the same are applicable thereto. 

Sections 793-812 of the Criminal Code on search 
warrants are in part as follows : 

§ 793. "A search warrant cannot be issued but upon probabk 
cause, supported by affidavit, naming or describing the person, and 
particularly describing the property, and the place to be searched. 

§ 794:. " The magistrate must, before issuing the warrant, examine 
on oath, the complainant and any witnesses he may produce, and take 
their depositions in writing, and cause them to be subscribed by thfc 
parties making them. 

§ 795. " The depositions must set forth the facts tending to estab- 
lish the grounds of the application, or probable cause for believing' 
that they exist. 

§ 796. " If the magistrate be thereupon satisfied of the existence 
of the grounds of the application, or that there is probable cause to 
believe their existence, he must issue a search warrant, signed by him 
with his name of olfice, to a peace officer in his county, conamanding 
him forthwith to search the person or place named, for the property 
specified, and to bring it before the magistrate. 

§ 798. "A search warrant may, in all cases, be served by any of 
the officers mentioned in its direction, but by no other person, except 
in aid of the officer, on his requiring it, he being present and acting 
in its execution. 

§ 799. " The officer may break open an outer or inner door or 
window of a building, or any part of the building, or anv'thing therein 
to execute the warrant, if, after notice of his authority and purpose, 
he be refused admittance. 

§ 800. " He may break open any oi;ter or inner door or window 
of a building for the purpose of liberating a person who, ha\'ing 
entered to aid him in the execution of the warrant, is detained therein, 
or when necessary for his own liberation. 



246 Game Law Guide 

§ 801. " The magistrate must insert a direction in the warrant that 
it be served in the day-time, unless the affidavits be positive that the 
property is on the person or in the place to be searched; in which 
case he may insert a direction that it be served at any time of the 
day or night. 

§ 802. "A search warrant must be executed, and returned to the 
magistrate by whom it was issued, if issued in the city and county of 
New York, within five days after its date, and if in any other county, 
within ten days. After the expiration of those times, respectively, the 
warrant, unless executed, is void. 

§ 803. " When the officer takes property under the warrant, he 
must give a receipt for the property taken (specifying it in detail) to 
the person from whom it was taken by him, or in whose possession it 
was found, or, in the absence of any person, he must leave it in the 
place where he found the property. 

§ 809. " If it appear that the property taken is not the same as 
that prescribed in the warrant, or that there is no probable cause for 
believing the existence of the grounds on which the warrant was issued, 
the magistrate must cause it to be restored to the person from whom 
it was taken. 

§ 811. "A person who maliciously and without probable cause, pro- 
cures a search warrant to be issued and executed, is guilty of a 
misdemeanor. 

§ 812. "A peace officer who, in executing a search warrant, wil- 
fully exceeds his authority, or exercises it with unnecessary severity, is 
guilty of a misdemeanor." 

See section 1847 of the Penal Law. 
Section 93 of the General Construction Law provides : 

" The repeal of a statute or part thereof shall not affect or impair 
any act done, offense committed or right accruing, accrued or acquired, 
or liability, penalty, forfeiture or punishment incurred prior to the 
time such repeal takes effect, but the same may be enjoyed, asserted, 
enforced, prosecuted or inflicted, as fully and to the same extent as if 
such repeal had not been effected." 

See section 32. 



CHAPTER XVIII 



PRIVATE PROPERTY RIGHTS IN WILD ANIMALS 

This chapter deals with the ownership of wild animals 
{ferae naturae) as among or between individuals in 
contradiction to that so-called title to them asserted by 
the State against all claimants, discussed in connection 
with Chapter III devoted to an analysis of Section 175 
of the Conservation Law. 

As has been there intimated, the declaration of that 
section based upon what was the Civil Law of Rome, the 
Common Law of England, and the adopted law of this 
State does not extend or apply to animals falling within 
the following Classes : 

A. Animals domestic {domitae naturae). 

B. Animals once wild, but legally reclaimed and tamed 

{Mansuetae naturae). 

C. Animals wild {ferae naturae) so far reclaimed as 

to be kept in captivity provided their possession 
was legally acquired and lawfully maintained. 

See sections 190, 200, 159, 371-372. 

D. Animals wild which are neither quadrupeds, birds 

nor fish. 

See section 185 on Imnting license where a gun is used. 
CLASS A. 

In order to solve many of the interesting questions 
which arise under this particular chapter, it will undoubt- 
edly prove profitable to devote some discussion to ani- 
mals in Class A. These common domestic animals such 
as horses, cattle, sheep, fowls, dogs, cats, etc., are like 
other chattels the subjects of what are termed absolute 

[247] 



248 GrAME Law Guide 

property rights for the invasion of which the usual civil 
remedies of conversion and replevin will lie. These 
property rights in domestic animals may be protected by 
the use of such force as may be necessary to accomplish 
the purpose and prevent interference therewith. 

Penal Law, section 246. 

It has also been held that the owner of such animals 
may retake them from any person wrongfully withhold- 
ing or appropriating them provided it is done peaceably. 
This privilege is spoken of as the right of recaption, but 
is not encouraged as against resort to legal processes as 
the exercise of the right tends to the commission of 
breaches of the peace. 

Cooley on Torts, pages 52-58. 
Addison on Torts, vol. 1, page 442. 

At a time when under the English common law larceny 
was among the capital crimes, the courts refused to con- 
sider as the subjects of larceny even domestic animals 
which were of no value for food purposes. Such animals 
regardless of any claim to value for any other reason 
were entitled noxious animals of a base nature and this 
was true of dogs and cats although a civil action was 
admitted to lie for any injury done them. 

People V. Campbell, 4 Parker's Criminal Reports, 386. 

2 Cyc. 309. 

2 Blackstone, 292-293. 

It was however held that the stealing of the skin of a 
dog was larceny for the reason that labor had been 
expended on it. 

Rex V. Halloway, 1 C. & D. 127. 

This principle of law has been generally discarded and 
all domestic animals including dogs and cats are subjects 



Pkivate Property Rights in Wild Animals 249 

of larceny in this State if for any reason they have a 
commercial market or marketable value. 

MuUaly v. People, 8G N. Y. 365. 
Ingham on Animals, page 8. 

The title to the increase of these animals, their young 
and their eggs, according to both the Civil Law and the 
Common Law follows that of the parent animals on the 
maxim partus sequitur ventrem. 

Am. & Eng. Eney. of Law, vol. 2, page 348. 
Schouler on Personal Property, vol. 1, page 83. 

The only exception to this rule seems to be that of 
cygnets or young swans which belong equally to the 
owner of the male and female birds due to their claimed 
lifelong mating. 

2 Cyc. 30. . > 

7 Coke, 18a. i 

2 Blackstone, 390. 

It would prove a difficult problem to adopt any precise 
general principle upon which one could determine just 
what animals fall within this domestic class and what do 
not. According to eminent philosophers the reason why 
many animals are wild is not because of their own nature 
so much as the treatment they receive from mankind and 
any one w^ith any experience among unmolested wild ani- 
mals can vouch for this. Prominent naturalists also 
assert what must needs be true that those animals which 
are commonly called tame were originally w^ild and have 
only by virtue of years or heredity and environment 
became otherwise. 

Ingham on Animals, 1-2. 

Schouler on Personal Property, vol. 1, pages 76-83. 

2 Kent's Commentaries, page 348. 



250 Game Law Guide 

One of the favored tests is the possession or lack on the 
part of the particular animal of what is known as the 
animus revertendi (the disposition if unconfined or 
strayed, to remain at or return home). The instinct for 
natural liberty has been abandoned by the tame animals, 
and has not been abandoned by the wild ones forcibly 
held in subjection. 

Domestic animals are presumed to possess this animus 
revertendi. 

People V. Kaatz, 3 Parker's Crim. Reports, 129. 

Such domestic animals are personal property and title 
to them passes accordingly. 

CLASS B 

Experience abounds with instances where animals 
concededly wild have been caught, kept, and so adapted 
to captivity through the art industry and patience of 
man that they have lost the spark of liberty, the inclina- 
tion to be wild and have developed subject perhaps to 
occasional lapses, ''pet nature '' or a pronounced animus 
revertendi. These reclaimed animals may perhaps prop- 
erly be called those mansuetae naturae (of a tamed 
nature) in order by a technical and rather artificial dis- 
tinction to differentiate them from those {domitate nat- 
urae) ; they would without doubt not be presumed to pos- 
sess the animus revertendi and the possession of that 
characteristic if material would have to be proved. 

Compare Cooley on Torts, page 435. 
Ulery v. Jones, 81 111. 403. 

The animus revertendi is only to be known by the usual 
custom or habit of the animal to return. Its intention to 
return if strayed is manifested by its habitual return 
unless interfered with. 

4 Blackstone's Commentaries, 588-589. 



Private Property Rights in Wild Animals 251 

These animals in Class B are like those in Class A, 
the subjects of absolute property rights for the invasion 
of which the usual civil remedies will lie and their wrong- 
ful appropriation is larceny if they for food, fur or other 
reason have a commercial market or marketable value. 

Ing-liam on Animals, pages 8-10, 20-23, 37-40. 
Abbott's Trial Evidence, 378-380. 

Accordingly : 

Pigeons and doves have been held to be the subjects of 
larceny. 

Reg. V. Cheafor, 8 Eng. L. & Eq. 598. 
Rex. V. Brooks, 4 C. & D. 131. 
See 23 Albany Law Journal, 482. 

Pheasants reared by a hen have been so treated. 

Rex V. Garnham, 7 Cox C. C. 451. 

Ferrets under the old idea have been held not to be the 
subjects of larceny on account of their base nature. 

Rex V. Seabring, 3 R. & B. C. C. 351. 

The proposition would not now hold true in view of 
the value of ferrets for other than food purposes. 

In Warren v. State, 1 Green (Iowa) 106 a raccoon was 
held not to be the subject of larceny, but this case was 
severely criticised in Haywood v. The State, 41 Arkan- 
sas, 479, on the ground that raccoons are in some localities 
prized for food aside from their fur value. 

Bees in the possession of their owner have been held 
to be the subject of larceny. 

Manning v. Mitcherson, 69 Ga. 447. 
Haywood v. State, 41 Arkansas, 479. 

The early law extended the property right in these 
animals beyond their actual possession and attached it 
to them when unconfined or strayed provided of course 



252 Game Law Guide 

they possessed the animus revertendi and were capable 
of identification. 

In the days of falconing this was particnlarly applic- 
able to the hawk or falcon on the wing in pursuit of game. 

Ingham on Animals, pages 6-7. 
4 Blackstone, 588-589. 

These principles would apply to any such animal of 
Class B though of a type ordinarily found ivild, where 
there was anything to indicate its reclaimed nature and 
it was capable of identification in the hands of a taker. 

Title to animals in Class B and their increase is 
governed by the same principles as those applicable to 
animals in Class A. 

CLASS c 

The above principles including that of larceny apply 
with equal force to wild animals legally acquired and 
possessed which have not developed any animus rever- 
tendi, so long as they are kept captive, even though if 
escaped they would lose their nature as property. This 
would include fish in inclosed ponds or trunks from which 
they can be taken at will, but the rules does not appear to 
apply to fish in ponds having inlets and outlets through 
which the fish may pass at will. 

2 Blackstone, 392. 

Ohio V. Shaw, 60 L. R. A. 481. 

Fleet V. Hegeman, 14 Wendell, 42. 

Earl V. Van Alstyne, 8 Barbour, 630. 

Compare section 246, 290, 291. 

See section 1425, subdivision 12, of the Penal Law. 

As a general rule if an animal not possessed of the 
animus revertendi escapes or should be restored to its 
natural element or habitat all property in it is lost ; but a 



Peivate Property Rights in Wild Animals 253 

person unlawfully releasing such animals lawfully 
possessed is liable for the loss sustained. 

2 Blackstone, 393. 

James v. Wood, 82 Me. 173. 

2 Kent, 394. 

There seems to be an exception to this rule where the 
owner on observing or hearing of the escape follows, 
finds and identifies the animal. 

Mullett V. Bradley, 24 M. 695. 

A mere temiDorary escape of a wild animal does not 
divest its o^\aler of title per industriam. It remains his 
property and no stranger can acquire title thereto pro- 
vided it has animus revertendi or the owner pursues and 
identifies it. 

Amory v. Flynn, 10 Johnson, 102. 
Goff V. Kilts, 15 Wendell, 550. 

This is true although it may flee to and make its abode 
on the lands of another where he cannot pursue it 
without committing a trespass. 

In the case of Goff v. Kilts, a swarm of hees owned by 
Goff left the hive and settled on a tree standing on the 
lands of Kilts. Goff observing the swarm kept it in 
sight, followed it and marked the tree into which the 
bees had gone. Two months later the tree was cut do^vn, 
the bees killed and the honey taken by Kilts and others. 
The claim of Goff to the bees and the honey was upheld 
by virtue of the principle set forth in the above exception 
to the rule. 

In the case of Mullett v. Bradley a sea lion had escaped 
from the plaintiff who had it in captivity near New York 
City and two weeks later was caught in a fish pound off 
the Jersey coast, seventy miles from the point of its 
escape. The owner had not observed its escape and upon 



254 Game Law Guide 

learning of the fact had not followed its possible course 
in search of it, but on learning of its recapture had 
demanded its return. It was held that the animal had 
regained its natural liberty, had shown no intention to 
return and that the property in it was lost. 

This case has been criticized on the ground that the 
principle held to, is not applicable to animals which are 
not ordinarily found wild in the locality of the capture. 

Ingham on Animals, 3-4. 

There would without doubt also be an exception in case 
of an animal so marked, tagged or branded, as to disclose 
the identity of its owner if the animal were taken alive or 
even if killed, though in all probability no action would 
lie for the otherwise innocent act of killing it, if it had 
lost its animus revertendi. 

Ingham on Animals, 7. 
2 Blackstone, 392. 

In Amor}^ v. Flynn, 10 Johnson, 102, wild geese which 
had become tamed, but which had twice before strayed 
and not returned, were held nevertheless to be the sub- 
ject of trover. 

Where the animal wiiich has been kept in captivity 
escapes and regains its natural element and liberty with- 
out inclination to return and is not promptly pursued and 
re-possessed by the claimed owner or cannot, it seems, 
be identified if taken by another while the claimed owner 
is also prosecuting the search, the owner's right therein 
ceases and it becomes the property of the person there- 
after capturing it. 

Kellogg V. King, 114 Cal. 378. 

James v. Wood, 82 Maine, 173. 

Matter of Deposit, 131 A. D. 403. 

Brinkerhoff v. Starkins, 11 Barb. 248. 

Goff V. Kilts, 15 Wendell, 550. 

4 Blackstone, 588. 

People V. Doxtater, 75 Hun, 472. 



Private Property Eights in Wild Animals 255 

This rule is more applicable to birds and quadrupeds 
than fish. 

The latter class of animals (C), is perhaps of most 
importance as including in a qualified sense wild quad- 
rupeds, birds or fish possessed alive during close season 
in accordance with law. 

It would particularly apply to animals possessed by 
virtue of Sections 159, 190, 196, 200, 371, and 372. Wild 
animals protected by law possessed prior to 1912 except 
under a collector's license would not be property except 
as the State might not care to disturb the claims to such 
animals possessed prior to the time when the doctrine of 
State ownership was formally declared. 

For instance, a bird, quadruped or fish protected by 
law taken prior to 1912, could lawfully be possessed dur- 
ing the close season only by one holding a collector's 
license now provided for in Section 159-1. 

From 1912 on, it could also be so possessed by one 
holding a license to propagate under what is now Section 
159-2 ; otherwise it would not be property and the State 
could if it saw fit confiscate it. No fish, quadrupeds or 
birds propagated and distributed by the State could, it 
seems, thus be possessed nor could any taken in close 
season be possessed except by a collector under Section 
159-1. 

Wild animals captured and held during close season in 
violation of law do not become the property of the captor 
and he cannot maintain an action against a game warden 
who releases them. 

James v. Wood, 82 Me. 173. 

This would also hold true of a release made by any 
other person acting in good faith. 

It seems that fish in an enclosed pond have been deemed 
to pass with the title to the land, but the better rule now 
appears to be that wdld animals including fish in Class 
C are except as to such restrictions as the State places 



256 Game Law Guide 

on those held under license, for all purposes, personal 
property. 

See Ingham on Animals, 40-41. 

See Sehouler on Personal Property, 120. 

See Hobens v. Barrett, 66 Hun, 189. 

CLASS D 

It may be said in passing that this category would 
include worms, grubs and insects. 

It would embrace reptiles except such as might be 
listed as quadrupeds, such as the turtle. 

It would cover mammals which are not quadrupeds, 
such as whales and seals, walruses, etc. 

Perhaps the most important of the above enumerated 
animals from the standpoint of this work is the hee. As 
to him, his hive and honey there is a wealth of law and 
has been no little litigation. In view of the fact that a 
majority of the principles generally applicable to all wild 
animals have been laid down in the case of bees, a refer- 
ence to these authorities and their holdings is indispen- 
sable as well as interesting. 

Bees are animals ferae naturae, but when hived, they 
become reclaimed and the property of the person who 
first hives them. If they afterward fly away this right of 
ownership continues so long as the swarm is hept in sight 
and the owner can under such circumstances pursue and 
recapture them even though they should settle upon a 
tree on another person's lands. 

Sehouler on Personal Property, vol. I, page 83. 

2 Kent, 394. 

Goff V. Kilts, 15 Wendell, 550. 

Merrills v. Goodwin, 1 Root, 209. 

Bees in the possession of the owner are the subject of 
larceny. 

State V. Murphy, 8 Blackford, 898. 
Harvey v. Commonwealth, 23 Gratt. 941. 



Pkivate Property Eights in Wild Animals 257 

It was held in the case of Wallis v. Mease, 3 Binn, 546, 
that wild bees remaining in a tree where they have been 
hived, notwithstanding the fact that the tree is upon the 
land of an individual and the owner confined them in it, 
were not the subject of a felony. 

This proposition may well be doubted in view of the 
commercial value of bees. 

Bees have a local habitation, more often in a tree than 
elsew^here, and w^hile there they may be said to be within 
control, because the tree may at any time be felled. But 
the right to cut it is in the owner of the soil, and, there- 
fore, such propert}^ as wild bees are susceptible of is in 
him also. A hunter's custom may recognize a right to the 
tree in the first finder, but the law of the land knows 
nothing of this, and he will be a trespasser if, without 
permission, he enters upon the land to cut it. Even a 
license given by the owner of the soil to cut the tree may 
be revoked at any time before it has been acted on. But 
if the bees have once been domesticated and have then 
escaped, the loser retains his property therein, and may 
reclaim them if he pursues after them with reasonable 
promptness. 

Cooley on Torts, 509. 

Bees are ferae naturae; and until hived and reclaimed, 
no property can be acquired in them. Finding a tree on 
the land of another, containing a swarm of bees, and 
marking the trees with the initials of the finder's name, 
is not reclaiming the bees, nor does it vest in the finder 
any exclusive right of property in them; nor can the 
finder maintain trespass against a person for cutting 
down the tree and carrying away the bees. 

Gillet V. Mason, 7 Johnson, 15. 
17 



258 Game Law Guide 

A licensee may, however, maintain an action against a 
subsequent licensee who interferes while he is actually 
engaged in cutting down the tree. 

Adams v. Burton, 43 Vt. 36. 

Wild bees, in a bee-tree, belong to the owner of the soil 
where the tree stands. 

Though another discover the bees, and obtain license 
from the owner to take them and mark the tree with the 
initials of his name, this does not confer the ownership 
upon him, until he has taken actual possession of the 
bees. 

If he omit to take such possession, the owner of the soil 
may give the same license to another, who may take the 
bees, without being liable to the first finder. 

The two parties, both having license, the one who takes 
possession first, acquires the title. 

There is some question as to whether the license to the 
second person w^ould operate as a revocation of the first 
license, but ordinarily it would not. 

Ferguson v. Miller, 1 Cowen, 243. 

Finding bees in a tree on another's land gives the 
finder no right to the bees or honey. 

Merrils v. Goodwin, 1 Root, 209. 

The owner of the bees, which have been reclaimed, may 
bring an action of trespass against a person who cuts 
down a tree into which the bees have entered on the soil 
of another, destroys the bees and takes the honey. 

Where bees take up their abode in a tree, they belong 
to the owner of the soil, if they are unreclaimed; but if 
they have been reclaimed, and their owner is able to 
identify his property, they do not belong to the owner of 
the soil, but to him who had the former possession, 
although he cannot enter upon the lands of the other to 



Peivate Property Rights in Wild Animals 259 

retake them without subjecting himself to an action of 
trespass. 

Goff V. Kilts, 15 Wendell, 550. 

Such a large number of the principles of property 
rights in and to wild animals which will be discussed 
farther on are referred to in Goff v. Kilts, that the inter- 
esting opinion in the case is printed here in full : 

"Animals ferae naturae, when reclaimed by the art and power of 
man, are the subject of a qualified property; if they return to their 
natural liberty and wildness, without the animus revertendi, it ceases. 
During the existence of the qualified property, it is under the protec- 
tion of the law the same as any property, and every invasion of it is 
redressed in the same manner. Bees are ferae naturae, but when 
hived and reclaimed, a person may have a qualified property in them 
by the law of nature, as well as the civil law. Occupation, that is, 
hiving or enclosing them, gives property in them. They are now a 
common species of property, and an article of trade, and the wildness 
of their nature by experience and practice has become essentially sub- 
jected to the art and power of man. An unreclaimed swarm, like all 
other wild animals, belongs to the first occupant — in other words, to 
the person who first hives them; but if a swarm fly over the hive of 
another, his qualified property continues so long as he can keep them 
in sight, and possesses the power to pursue them. Under these cir- 
cumstances, no one else is entitled to take them. 2 Black. Comm. 393 ; 
2 Kent's Comm. 394. 

" The question here is not between the owner of the soil upon which 
the tree stood that included the swann, and the owner of the bees; 
as to him, the owner of the bees would not be able to regain his 
property, or the fruits of it without being guilty of trespass. But it 
by no means follows, from this predicament, that the right to the 
enjoyment of the property is lost; that the bees therefore become 
again ferae naturae, and belong to the first occupant. If a domestic 
or tame animal of one person should stray to the enclosure of another, 
the owner could not follow and retake it, without being liable for a 
trespass. The absolute right of property, notwithstanding, would still 
continue in hun. Of this there would be no doubt. So in respect to 
the qualified property in the bees. If it continued in the hollow tree, 
' as this qualified interest is under the same protection of the law as if 
absolute, the like remedy existed in ease of an invasion of it. It 
cannot, I think, be doubted, that if the property in the swarm con- 
tinues while within sight of the owner — in other words, while he can 



260 Game Law Guide 

distinguish and identify it in the air — that it equally belongs to him 
if it settles upon a branch or iii the trunk of a tree, and remains there 
under his observation and charge. If a stranger has do right to take 
the swarm, in the former case, and of which there seems no question, 
he ought not to be permitted to take it in the latter, when it is more 
confined and within the control of the occupant. 

" It is said the owner of the soil is entitled to the tree and all 
within it. This may be true, so far as respects an unreclaimed swarm. 
While it remains there, in that condition, it may, like birds and other 
game, (game laws out of the question) belong to the owner or occu- 
pant of the forest, ratione soli. According to the law of nature, where 
prior occupancy alone gave right, the individual who first hived the 
swarm would be entitled to the property in it, but since the institution 
of civil society, and the regulation of the right of property in its 
positive laws, the forest as well as the cultivated field, belong exclu- 
sively to the owner, who had acquired a title to it under those laws. 
The natural right to the enjoyment of the sport of hunting and fowling, 
wherever animals ferae naturae could be found, has given way, in 
the progress of society, to the establishment of rights of property 
better defined and of a more durable character. Hence no one has 
a right to invade the enclosure of another for this purpose. He would 
be a trespasser, and as such liable for the game taken. An exception 
may exist in the case of noxious animals, destructive in their nature. 
M'r. Justice Blackstone says, if a man starts game in another's private 
grounds, and kills it there the property belongs to him in whose ground 
it is killed, because it was Started there, the property arising ratione 
soli, 2 Black. Com. 219. But if animals ferae naturae that have been 
reclaimed, and a qualified property obtained in them escape into the 
private grounds of another in a way that does not restore them to 
their natural condition, a diiferent rule ob\'iously applies. They are 
then not exposed to become the property of the first occupant. The 
right of the owner continues, and though he cannot pursue and take 
them without being liable for a trespass, still this difficulty should not 
operate as an abandonment of the animals to their former liberty. The 
rights of both parties should be regarded and reconciled as far as is 
consistent with a reasonable protection of each. The cases of Heer- 
mance v. Vernay, 6 Johns. R. 5, and Blake v. Jerome, 14 id. 406, are 
authorities for saying, if they were wanted, that the inability of the 
owner of a personal chattel to retake it while on the premises of another 
without committing a trespass, does not impair his legal interest in the 
property. It only embarrasses the use or enjoyment of it. The owner 
of the soil therefore, acquiring no right to the property in the bees, 
the defendant below cannot protect himself by showing it out of the 
plaintiff in that way. It still continues in him, and draws after it the 
possession sufficient to maintain this action against a third person, 



Peivate Pkopeety Eights in Wild Animals 261 

who invades it by virtue of no other claim than that derived from the 
law of nature. This case is distinguishable from the cases of Gillet 
V. Mason, 7 John. R. 16, and Fergnson v. Miller, 1 Cowen, 243. The 
first presented a question between the finder and a person interested 
in the soil; the other between two persons, each claiming as the first 
finder. The plaintiff in the last case, though the first finder had not 
acquired a qualified property in the swarm according to the law of 
prior occupancy. The defendant had. Besides the swarm being unre- 
claimed from their natural liberty while in the tree, belonged to the 
owner of the soil ratione soli." 

The provisions which apply to bees, apply with even 
greater force likewise to the honey and the honeycomb. 

So where a trespasser placed a box in a tree on 
another's land for bees to hive in, it was held that he 
could not maintain trover against a third person for tak- 
ing bees and honey from the box. 

Rexroth v. Coon, 15 R. I. 35. 

Wliile it has been claimed that the law applicable to 
chattels embedded in the soil making them the property 
of the landowner should apply to grubs, worms and bees 
hived in a tree, the principle seems strictly true only of 
inanimate property. 

Other important principles equally applicable to fish 
have been laid down in the case of whales in Addison on 
Torts, Vol. 1, pages 413-414 : 

" If a wliale has been struck by a harpooner, the whale, so long as 
the harpoon remains in the fish, and the line continues attached to it, 
and also continues in the power of management of the striker, is a 
fast fish, though during that time it is struck by a harpooner of 
another ship; and if tlie whale afterwards breaks from the first 
harpoon, but continues fast to the second, the second harpoon is a 
friendly harpoon, and the fish of the first striker, and of him alone. 
But if the first harpoon or line breaks, or the line attached to the 
harpoon is not in the power of the striker, the fish is a loose fish, and 
will become the property of any other person who strikes and obtains 
it. But although the harpoon comes out of the fish, or is detached from 
the line, yet if the whale is so entangled in the rope as to give the 
first strikers the same power over it as if the harpoon were fixed, the 



262 Game Law Guide 

fish will still continue a fast fish, and be the property of the first 
strikers; and if the fish is unlawfully liberated by the wrongful mter- 
ference of a third party, who afterwards harpoons it and secures it, 
it will nevertheless, be the property of the first strikers. If a whale is 
killed, anchored and left with marks of appropriation, it is by law 
and custom the projDerty of the captor even if it drifts away from the 
place of anchorage." 

Compare Ingham on Animals, 23-28. 

Property in a whale is in those who first iron or lance 
it with implements by which it can be identified. 

Swift V. Clifford, 2 Lowell, 110. 
Ghen v. Rich, 8 Fed. Rep. 159. 

Where it is customary to kill w^hales with bomb lances 
and they sink to the bottom and after two or three days 
float to the surface, a usage, that they shall belong to the 
person who killed them, no matter by whom found is 
enforceable. 

CLASS E 

The class of animals and the property rights in them 
upon which all of the foregoing discussion has an import- 
ant bearing and in which sportsmen are immediately 
interested consists of quadrupeds, birds and fish in their 
natural element or state of nature whether protected by 
law or otherwise. It may not be amiss at this point to 
reiterate that only those quadrupeds for which a close 
season is provided and those fish for which a close season 
or size limit or hoth are specified are protected hy law. 
All birds are protected by laiv except those specifically 
outlawed by Section 219. 

See section 176 and the discussion thereunder. 

As to these animals except for regulations as to trans- 
portation, possession after close season, sale, etc., the 
State during the open season provided by law waives and 
abandons its claims of ownership and title in favor of the 



Private Property Eights in Wild Animals 263 

person who legally takes them and in favor of the other- 
wise absohite or qualified property rights acquired and 
held in such fish and game by virtue of the common law 
preserved by Article I, Sections 16, 17, of Constitution 
of the State and applied by the courts which common 
law, in the absence of statute, prevails. 

As to the common law generally preserved by the Con- 
stitution ; 

Fulton Light & Power Co. v. State, 200 N. Y. 400. 
Matter of Carnegie Trust Co., 151 A. D. 606. 
Smith V. Rochester, 92 N. Y. 463. 

If these animals in Class E are taken or possessed con- 
trary to law, alive or dead, they not only may be confis- 
cated by the State, but no property as against third per- 
sons is it appears acquired in them. 

Third persons not acting in good faith who availed 
themselves of the fruit of the violation would be liable 
to the State. 

See sections 176 and 154. 

As was stated in James v. Wood, 82 Me. 173 : 

" Suppose a hunter has his rifle levelled at game in close time and 
some one shoves it aside so that the game is missed. Shall the hunter 
have damages? He has only been prevented from continuing a crim- 
inal act. Suppose lobsters illegally taken are thrown overboard alive. 
Is he who does it a trespasser? Shall the taker of them have damages 
for his illegal catch? Or suppose one lands a salmon in violation of 
law and a bystander, while it is j^et alive, throws it back into the water. 
Shall the fisherman have the value of the salmon that the law forbids 
his having at all? When game is killed, it absolutely becomes prop- 
erty, but when taken alive only conditionally so; for when released 
property in it is gone. So long, then, as the possession of live game 
is illegal, qualified property in it is illegal also, and the releasing of 
such game interferes with no legal right or title of the person ille- 
galh^ holding it captive." 

This brings us to the consideration of what is known 
as the Law of the Chase as to animals in the state of 



264 Game Law Guide 

nature which obtains as between individuals hunting in 
compliance with law where the rights of the oivner of the 
land or of the exclusive hunting and fishing rights 
thereon are waived and not asserted. This exception 
will be discussed later. 

The Law of the Chase presents two principles or rules : 

First — That of the Civil Law of Eome. 

Second — That of the Common Law of England. 

Under both rules the property right in the animal so 
reduced to actual possession is protected by law and for 
invasion of it, the usual civil remedies and also larceny 
if it is of any value will lie. This would apply to the 
killed animal; the wounded animal reduced to actual pos- 
session and kept captive and to animals in trap, dead or 
alive. ] 

Wild game being the subject of ownership and prop- 
erty, its possession is prima facie title as with all other 
chattels and is sufficient to support any action concern- 
ing it against the wrongdoer. 

James v. Wood, 82 Me. 173. 

It was held in State v. Krider, 78 N. C. 481, that fish 
unless reclaimed, confined or dead and valuable for food, 
were not to be considered subjects of larceny. 

In Norton v. Ladd, 5 N. H. 203, it was held that where 
a sahle was caught in a trap and stolen therefrom the 
theft could not he larceny, harking back to the old English 
cases involving noxious animals, although it was admit- 
ted that the shin alone might be. 

On the contrary, it was held in State v. House, 65 N. C. 
315, that the taking of an otter from a trap was larceny 
for the reason of the value of its fur ; to quote from the 
opinion in the case : 

"All of the distinctions as to animals ferae naturae and as to their 
generous or base natures which we find in the English books will not 
hold good in this country. The English system of game laws seems to 
have been established more for princely diversion than for use or profit 



Private Property Rights in Wild Animals 265 

and is not at all suited to the wants of our enterprising trappers. We 
take the true criterion to be the value of the animal whether for the 
food of man, for its fur or otherwise. We know that the otter is an 
animal very valuable for its fur and we know also that the fur trade 
is an important one in America and even in some parts of North Caro- 
lina. If we are to be bound absolutely by the English authorities with- 
out regard to their adaption to this country, we shoiild be obliged to 
hold that most of the animals so valuable for their fur are not the sub- 
jects of larceny on account of the baseness of their nature while at 
the same time we should be bound to hold that hawks and falcons when 
reclaimed are the subjects of larceny in respect to their generous nature 
and courage." 

So it was said in the case of Haywood against the 
State, 41 Arkansas, 479, involving the theft of a tamed 
mocking bird : 

" The English Courts made exceptions to the rule that reclaimed 
animals to be the subjects of larceny must be fit for food. Thus the 
tamed hawk was held to be the subject of larceny though unfit for food, 
because it served to amuse the English gentlemen in their fowling sports. 
So reclaimed honey bees were made an exception because, though not 
fit for food themselves, their honey is. Under decisions of English 
and American courts made upon the common-law definition of larceny, 
Mr. Bishop classes the following animals when reclaimed as the sub- 
jects of the offense: Pigeons, doves, hares, conies, deer, swans, wild 
boars, cranes, pheasants, partridges and fish suitable for food, inclnd- 
ing oysters. To which might be safely added wild turkeys, geese, ducks, 
etc., when reclaimed. Of those animals of which there can be no lar- 
ceny, though reclaimed, he puts down the following : Dogs, cats, bears, 
foxes, apes, monkeys, polecats, ferrets, squirrels, parrots, singing- 
birds and coons. In the South, sqiiirrels are in common use as food 
animals, and the hunters of all climates regard bears as good food. 
Iowa is credited with the decision that coons are unfit for food and 
therefore by the common law not the subject of larceny, when reclaimed. 
Among the colored people of the South the coon when fat in the fall 
and winter is regarded as a luxury, and the Iowa decision would not 
be regarded by them as sound law or good taste. Every species of 
personal property was not the subject of larceny at common law. The 
pro\'isions of the larceny statute of this state are very broad and com- 
prehensive. The first section defines the crime thus : ' Larceny is the 
felonious stealing, taking and caiTying, riding or driving away the 



266 Game Law Guide 

person or property of another.' This, perhaps, is not more compre- 
hensive than the common-law idea. The reclaimed mockingbird in 
question was no doubt personal property. To hold that larceny might 
be committed of the cage but not of the bird would be neither good 
law nor common sense." 

It may be stated that the Civil Law and the Common 
Law agree that in animals in a state of nature there is no 
absolute property right or no property right properly 
speaking in the individual. Such peculiar rights as exist 
in them under the above exception due to the ownership 
of the land are subject to the control of the State and 
governed by it. But when killed or reclaimed they 
become property, absolutely when killed and qualifiedly 
when reclaimed. 

State V. Mallory, 67 L. R. A. 773. 
James v. Wood, 82 Me. 173. 
Blades v. Higgs, 11 H. L. Cases, 621. 
Kellogg V. King, 114 Cal. 378. 
Geer v. Connecticut, 161 U. S. 519. 
Long Point v. Anderson, 19 Ont. 487. 

Property rights in such animals, however, may be 
acquired provided it is done in compliance with law and 
not in hostility to the claim of the State before and after 
capture. And when within the provisions of the statute 
the individual is as much protected in the enjoyment of 
his rights in this species of property as in any other 
under the law. 

Kellogg V. King, 114 Cal. 378. 

These rights may be acquired as it is said per indus- 
triam hominis that is by the art and agency of man 
directed toward their capture, dead or alive. The nat- 
ural right to pursue or take any wild animal, exists in 
every individual except so far as restrained by express 
provision of law and a person who has once seized such 



Pkivate Peopeety Eights in Wild Animals 267 

an animal becomes the owner thereof while he remains in 
control of it. 

2 Blackstone, 403. 

The Rule of the Chase under the Civil Law was that 
actual and continued occupancy or possession of wild 
animals was absolutely necessary to the successful asser- 
tion of title thereto; one must both catch and keep. If 
the animal though in hand and wounded, escaped, the 
property in it was lost. 

2 Justinian, book 1, section 13. 
2 Kent's Commentaries, 349. 
4 Blackstone Commentaries, 588. 

But under the Common Law while it is true that actual 
occupancy or possession creates title, the principles of 
property rights in and to wild animals are greatly and 
interestingly extended. A constructive possession or 
occupancy is recognized. 

Under the Common Law Rule recognizing the con- 
structive occupancy or possession, the rule is different. 
This constructive possession arises when an animal has 
been so ivounded as to deprive it of its natural liberty 
and the chase of it reasonably certain to reduce it to 
actual possession is uninterrupted and unabandoned. 
It also occurs when an animal has been trapped or snared 
and in escaping has so injured itself as to be deprived of 
its natural liberty provided it is tracked or hunted down 
without interrupted chase. It also arises when fish have 
been hooked, netted or enclosed so as to bring them 
within the practical control of the fisherman. 

Addison on Torts, vol. 1, page 415. 

Pierson v. Post, 3 Caines, 175. 

Blister V. Newkirk, 20 .Johnson, 75. 

Charlebois v. Raymond, 12 L. C. J. 55. 

Liesner v. Wanie, 50 L. R. A. 703 (145 N. W. 374). 



268 Game Law Guide 

Wliile pursuit alone gives no property in animals, 
ferae naturae, the possession necessary to acquire such 
right does not mean actual hodily seizure, but ivounding 
or ensnaring the animal so as to prevent its escape is 
sufficient provided the hunter doete not abandon the 
chase. 

State V. House, 65 N. C. 315. 
Fleta B., 3 Ch. 2, p. 175. 
Bracton B., 2 Ch. 1, p. 8. 

Speaking of the application of the principle of con- 
structive occupancy to fish, it is said in Addison on Torts, 
page 414 : 

" If the interference of such third party takes place before the fisher- 
man has got the fish in his power, or under his dominion and control, 
there can be no right of property in or title to, the fish. Thus, where 
the plaintiff, whilst fishing for pilchards, had nearly encompassed a 
vast quantity of fish with a net, and would have captured the whole 
of them, but for the interference of the defendant, who came with boats 
and sailors, and drove the fish into his own nets and captured them, 
it was held that the plaintiff could set up no title to the fish, as he 
never had them under his dominion and control, but ought to have sued 
the defendant for interfering with his nets, and unjustifiably prevent- 
ing the plaintiff from exercising his occupation and calling of a fisher- 
man, and catching the fish." 

Citing: Young v. Hitehens, 5 Q. B. G06. 

Stevens v. Jeacocke, 11 Q. B. 731. 

Where a person while fishing cast a seine around a 
shoal of mackerel with the exception of an opening which 
the seine did not close up, but through which in the opin- 
ion of witnesses, the fish could not easily escape, it was 
held that his possession was nevertheless not so complete 
as to enable him to maintain an action of trespass against 
one who entered and took the fish. 

Young V. Hichens, 6 Q. B. 606. 



Pkivate Property Rights in Wild Animals 269 

The leading New York case on the Rule of the Chase is 
Pierson v. Post, decided in 1805 : 

'•'■ Post with certain dogs and hounds had found and started a fox 
and was pursuing the fox when Pierson prevented his catching it, 
killed it and carried it off. 

" The Court after considering the civil law and the common law, the 
works of Blaekstone, Justinian, Fleta, Bracton, Puffendorf, and Bar- 
beyrac, laid down the law in the following opinion: 

" The question submitted by the counsel in this cause for our deter- 
mination is, whether Lodowick Post, by the pursuit with his hounds 
in the manner alleged in his declaration, acquired such a right to, or 
property in, the fox as will sustain an action against Pierson for killing 
and taking him away? 

'' The cause was argued with much ability by the counsel on both sides, 
and presents for our decision a novel and nice question. It is admitted 
that a fox is an animal /eme naturae, and that property in such animals 
is acquired by occupancy only. Ttese admissions narrow the discus- 
sion to the simple question of what acts amount to occupancy, applied 
to acquiring right to wild animals. 

" If we have recourse to the ancient writers upon general principles 
of law, the judgment below is obviously erroneous. Justinian's Insti- 
tutes, lib. 2, tit. 1, c. 13, and Fleta, lib. 3, c. 2, p. 175, adopt the 
principle, that pursuit alone vests no property or right in the hunts- 
man; and that even pursuit, accompanied with wounding, is equally 
ineffectual for that purpose, unless the animal be actually taken. The 
same principle is recognized by Bracton, lib. 2, c. 1, p. 8. 

^■' Puffendorf, lib. 4, c. 6, s. 2, and 10 defines occupancy of beasts 
ferae naturae, to be the actual corporal possession of them, and Bynker- 
shock is cited as coinciding in this definition. It is indeed with hesita- 
tion that Puffendorf affirms that a wild beast mortally wounded, or 
greatly maimed, cannot be fairly intercepted by another, whilst the 
pursuit of the person inflictmg the wound continues. The foregoing 
authorities are decisive to show that mere pursuit gave Post no legal 
right to the fox, but that he became the property of Pierson who inter- 
cepted and killed him. 

" It therefore only remains to inquire whether there are any contrary 
principles, or authorities, to be found in other books, which ought to 
induce a different decision. Most of the cases which have occurred in 
England, relating to property in wild animals, have either been dis- 
cussed and decided upon the principles of their positive statute rela- 
tions, or have arisen between the huntsman and the owner of the land 
upon which beasts ferae naturae have been apprehended; the former 
claiming them by title of occupancy, and the latter rationed soli. Little 
satisfactory aid can, therefore, be derived from the English reporters. 



270 Game Law Guide 

" Barbeyrae, in his notes on Puffendorf, does not accede to the defini- 
tion of occupancy by the latter, but on the contrary, affirms, that actual 
bodily seizure is not, in all cases, necessary to constitute possession of 
wild animals. He does not, however, describe the acts which, accord- 
ing to his ideas, will amount to an appropriation of such animals to 
private use, so as to exclude the claims of all other persons, by title 
of occupancy, to the same animals ; and he is far from averring that 
pursuit alone is sufficient for that purpose. To a certain extent, and 
as far as Barbeyrac appears to me to go, his objections to PuffendorPs 
definition of occupancy are reasonable and correct. That is to say, 
that actual bodily seizure is not indispensahle to acquire right to, or 
possession of, wild beasts; but that, on the contrary, the mortal wound- 
ing of such beasts, by one not abandoning his pursuit, may, with the 
utmost propriety, be deemed possession of him; since thereby, the 
pursuer manifests an unequivocal intention of appropriating the animal 
to his individual use, has deprived him of his natural liberty, and 
brought him within his certain aontrol. So also, encompassing and 
securing such animals with 7iets and toils, or othenvise intercepting 
them in siicli a manner as to deprive them of their natural liberty, and 
render escape impossible, may justly be deemed to give possession of 
them to those persons who, by their industry and labor, have used 
means of apprehending them. The case now under consideration is 
one of mere pursuit, and presents no circumstances or acts which can 
bring it within the definition of occupancy by Puffendorf, or Grotius, 
or the ideas of Barbeyrac upon that subject. 

" The cases cited from 11 Mod. 74—130, I think clearly distinguishable 
from the present; inasmuch as there the action was for maliciously 
hindering and disturbing the plaintiff in the exercise and enjoyment 
of a private franchise; and in the report of the same case (3 Salk. 9), 
Holt, Ch. J., states, that the ducks were in the plaintiff's decoy pond, 
and so in his possession, from which it is obvious the court laid much 
stress in their opinion upon the plaintiff's possession of the ducks, 
ratione soli. 

" We are the more readily inclined to confine possession or occupancy 
of beasts ferae naturae, within the limits prescribed by the learned 
authors above cited, for the sake of certainty, and preserving peace 
and order in society. If the first seeing, starting, or pursuing such 
animals, without having so wounded, circumvented or ensnared them, 
so as to deprive them of their natural Wberty, and subject them to the 
control of their pursuer, should afford the basis of actions against 
others for intercepting and killing them, it would prove a fertile source 
of quarrels and litigation. 



Peivate Property Rights in Wild Animals 271 

" However uncourteous or unkind the conduct of Pierson towards 
Post, in this instance may have been, yet his act was productive of no 
injury or damage for which a legal remedy can be applied." 

A dissenting opinion was rendered by one of the 
judges and because of its rich and racy character, it is 
presented here : 

" Whether a person who, with his own hounds, starts and hunts a 
fox on waste and uninhabited ground, and is on the point of seizing 
his prey, acquires such an interest in the animal, as to have a right 
of action against another, who in view of the huntsman and his dogs 
in full pursuit, and with knowledge of the chase, shall kill and carry 
him away? 

" This is a knotty point, and should have been submitted to the arbi- 
tration of sportsmen, without poring over Justinian, Fleta, Braeton, 
Puffendorf, Locke, B'arbeyrac, or Blackstone, all of whom have been 
cited; they would have had no difficulty in coming to a prompt and 
correct conclusion. In a court thus constituted, the skin and carcass 
of poor reynard would have been properly disposed of and a precedent 
set, interfering with no usage or custom which the experience of ages 
has sanctioned, and which must be so well known to every votary of 
Diana. But the parties have referred the question to our judgment 
and we must dispose of it as well as we can, from the partial lights 
we possess, leaving to a higher tribunal, the correction of any mistake 
which we may be so unfortunate as to make. By the pleadings it is 
admitted that a fox is a ' wild and noxious beast.' Both parties have 
regarded him, as the law of nations does a pirate, ^ hostem humani 
generis/ and although ' de mortuis nil, nisi honum,' be a maxim of our 
profession, the memory of the deceased has not been spared. His depre- 
dations on farmers and on bam yards, have not been forgotten; and 
to put him to death wherever found, is allowed to be meritorious, and 
of public benefit. Hence it follows, that our decision should have in 
view the greatest possible encouragement to the destruction of an 
animal, so cunning and ruthless in his career. But who would keep a 
pack of hounds; or what gentleman, at the sound of the horn, and at 
peep of day, would mount his steed, and for hours together, ^ sub jove 
frigido,' or a vertical sun, pursue the windings of this wily quadruped, 
if, just as night came on, and his stratagems and strength were nearly 
exhausted, a saucy intruder, who had not shared in the honors or labors 
of the chase, were permitted to come in at the death and bear away in 
triumph the object of pursuit? Whatever Justinian may have thought 
of the matter, it must be recollected that his code was compiled many 
hundred years ago, and it would be very hard indeed, at the distance 



272 Game Law Guide 

of so many centuries, not to have a right to establish a rule for our- 
selves. In his day, we read of no order of men who made it a business 
in the language of the declaration in this case, ' with hounds and dogs 
to find, start, pursue, hunt (ind chase,' these animals, and that too, 
without any other motive than the preservation of Roman poultry; 
if this diversion had been then in fasliion, the lawyers who composed 
his institutes, would have taken care not to pass it by, without suit- 
able encouragement. If anything, therefore, in the digests or pandects 
shall appear to militate against the defendant in error, who, on this 
occasion, was the fox-hunter, we have only to say tempora mutantur; 
and if men themselves change with the times, why should not laws also 
undergo an alteration. 

" It may be expected, however, by the learned counsel, that more par- 
ticular notice be taken of their authorities. I have examined them all, 
and feel great difficulty in determining, whether to acquire dominion 
over a thing, before in common, it be sufficient that we barely see it, 
or know where it is, or wish for it, or make a declaration of our will 
respecting it; or whether, in the case of wild beasts, setting a trap, or 
lying in wait, or starting, or pursuing, be enough; or if an actual 
wounding, or killing, or bodily tact and occupation be necessary. 
Writers on general law who have favored us with their speculations on 
these points, diifer on them all; but, great as is the diversity of senti- 
ment along them, some conclusion must be adopted on the question 
immediately before us. After mature deliberation, I embrace that of 
Barbeyrac, as the most rational, and least liable to objection. If at 
liberty, we might imitate the courtesy of a certain emperor, who, to 
avoid giving oft'ence to the advocates of any of these different doc- 
trines, adopted a middle course, and by ingenious distinctions, ren- 
dered it difficult to say (as often happens after a fierce and angry 
contest) to whom the palm of victory belonged. He ordained, that if 
a beast be followed with large dogs and hounds, he shall belong to the 
hunter, not to the chance occupant; and in like manner, if he be killed 
or wounded with a lance or sword ; but if chased with beagles only, then 
he passed to the captor not to the first pursuer. If slain with a dart, 
a sling, or a bow, he fell to the hunter, if still in chase, and not to him 
who might afterwards find and seize him. 

" Now, as we are without any municipal regulations of our own, and 
the pursuit here, for aught that appears on the case, being with dogs 
and hounds of imperial stature, we are at liberty to adopt one of the 
provisions just cited, which comports also with the learned conclusion 
of Barbeyrac, that property in animals ferae naturae may be acquired 
without bodily touch or manucaption, provided the pursuer be within 
reach, or have a reasonable prospect (which certainly existed here) 
of taking, what he has thus discovered an intention of converting to his 
own use. 



Peivate Peoperty Rights in Wild Animals 273 

" When we reflect also that the interests of our husbandmen, the most 
useful of men in any community, will be advanced by tlie destruction 
of a beast so pernicious and incorrigible, we cannot greatly err, in 
saying, that a pursuit like the present, through waste and unoccupied 
lands, and whicli must inevitably and speedily have terminated in cor- 
poral possession, or bodily seisin, confers such a right to the object 
of it, as to make any one a wrongdoer, who shall interfere and shoulder 
the spoil." 

The first opinion controlled the case and is the law. 
In 1844 a statute was passed, ch. 109, which provided that 
any person who had started and pursued in the counties 
of Suffolk or Queens with a dog or otherwise, any deer 
during the open season should be deemed to be in posses- 
sion of it so long as he or they should continue in fresh 
pursuit thereof, but this was repealed by chap. 194, Laws 
of 1849. 

In Buster v. Newkirk, decided in 1822, it appeared that 
the Newkirk was hunting deer and had wounded one 
about six miles from Buster's house and was pursuing it 
with his dogs. He followed the track occasionally dis- 
covering blood until night; on the next morning he 
resumed the pursuit until he came to Buster's house 
where he found the deer had been killed the evening 
before. The deer had been fired at by another person 
just before he was killed by Buster and had fallen, but 
rose again and ran on, the dogs being in pursuit and 
Newkirk 's dog laid hold of the deer about the same time 
when the plaintiff cut the deer's throat. Newkirk 
demanded the venison and skin and Buster gave up the 
venison, but refused to deliver the skin. 

The Court said: 

" The principles decided in the case of Pierson v. Post (3 Caines 
Rep. 175), are applicable here. The authorities cited in that case estab- 
lish the position, that property can be acquired in animals ferae naturae, 
by occupancy only ; and that, in order to constitute such an occupancy, 
it is sufficient if the animal is deprived of his natural liberty, by 
wounding, or otherwise, so that he is brought witliin the power and 

18 



274 Game Law Guide 

control of the pursuer. In the present case, the deer, though wounded, 
ran six miles; and the defendant in error had abandoned the pursuit 
that da}', and the deer was not deprived of his natural liberty, so as 
to be in the power or under the control of Newkirk. He, therefore, 
cannot be said to have had a property in the animal, so as to maintain 
the action?" 

In Liesner v. Wanie, a Wisconsin case (1914), the pur- 
suit of a wounded wolf was vigorously continued and 
actual possession of the wounded animal was inevitable 
and it was held that while under the Civil Law the prop- 
erty right was postponed to the actual taking, yet under 
the Common Law one who had wounded a wild animal 
and pursued it so that escape was impossible had a prop- 
erty right therein which he might protect against one 
who killed and took possession of it, and his title would 
not be divested by the capture or killing of the animal by 
another, if at the time its capture by the huntsman 
was reasonably probable on account of wounds inflicted 
by him. 

Citing : 2 Bracton, chapter 1, page 8. 

2 Justinian Inst., title 1, section 13. 

2 Fleta, 2, 175. 

Pierson v. Post. 

Buster v. Newkirk. 

Charlebois v. Rajnuond. 

It also held that larceny would lie in case the animal 
was of value for food, fur or otherwise. If of absolutely 
base nature, it would not lie. 

In Charlebois v. Raj^mond, it was held that a person 
who has chased a wild animal and wounded it, is the first 
occupant so long as he remains in pursuit and is the 
owner of it, should it be caught or killed by another. 

It must be borne in mind that the above rule and cases 
presuppose a reasonably certain identification of the 
animal in question. 

It may also be gathered from these cases and those on 
whales that established customs and usages among 



Private Property Rights in Wild Animals 275 

sportsmen might on proof thereof play an important 
part in deciding any such issue and that a special or 
struck jury might be impanelled to dispose of them. 

It would seem that involuntary cessation of pursuit 
caused by nightfall ought not to divest the title ; and that 
he who finds the animal dead after the search has been 
given up by the hunter should be treated only as the 
finder of lost property and bound to deliver it to the one 
who brought about its reduction to possession, but this 
is apparently not the law. 

The hooking into a net lawfully set and the taking of 
fish therefrom would without doubt constitute larceny. 

It was held in People v. McMasters, 74 Hun 226, that 
the taking of such fish from a net unlawfully set and not 
immediately releasing them, rendered the taker liable to 
the penalty. 

It would seem that this constructive possession prop- 
erty right could be acquired through agents and would 
also be assignable, but such points up to date like many 
others have not been passed on. 

This rule of the chase would of course also apply to all 
animals not fish, birds or quadrupeds. 

It appears to be comparatively simple on the above 
principles to determine the right to take and the title to 
game taken on public lands, assuming they are public and 
the right to take and the title to fish taken in public 
waters assuming they are public as distinguished from 
private lands and waters. 

See article IV, as to the Forest Preserve. 
See Public Lands Law. 
See Barge Canal Lands. 
See section 366. 

The wound which would deprive a bird of its liberty 
and bring it wdthin the control of the hunter would be one 
proposition. The wound which would bring about the 



276 Game Law Guide 

same result as to a quadruped, however, especially a 
large one, would present a quite different question. 

In the case of fish duly Jiooked, netted or otherwise 
deprived of liberty, but lost through the conceded inter- 
ference of a third person and no other cause, assuming 
that the species was known and the question of weight 
determinable by other means than the '' scales on his 
back " a definite basis for a respectable cause of action 
would appear to be made. 

As intimated earlier in this discussion of animals in 
Class E, the above Rule of the Chase does not appear 
necessarily to apply where the rights of the owner of the 
land or the holder of the exclusive hunting and fishing 
rights thereon are asserted. 

It therefore becomes of paramount importance to 
determine the title to lands and particularly the title to 
lands along and constituting the bed of waters, inasmuch 
as will be seen later, the control of the waters as far as 
the exclusive hunting and fishing rights thereover or 
therein are concerned prima facie follow the ownership 
of the bed of the waters just as does the title to the ice 
formed upon the surface. 

See Rossmiller v. State, 58 L. R. A. 93. 

The proposition of determining the ownership of lands 
which involve no waters except those of negligible vol- 
ume is comparatively simple and can readily be solved 
by a reference to the chain or abstract of title and an 
examination of the descriptions, courses, metes and 
bounds in the consecutive conveyances. 

Presumptively the land within the bounds of the high- 
way is owned by the abutting owner to the centre of the 
road; if he owns on both sides, he owns the land subject 
to the public easement which does not, however, include 
the right of the public to fish or hunt (regardless of the 
provision of law prohibiting hunting on the highway), 
any more than it includes the right to cut the grass or 



Peivate Property Rights in Wild Animals 277 

pluck the nuts or apples from the trees which grow 
within the four rod strip. 

No hunting or fishing rights along the highway through 
a man's land exist in favor of the public even when 
there has been a dedication of the land for highway 
purposes. 

See section 222. 

Realty Co. v. Johnson, 66 L. R. A. 439. 

The towpatlis have been held not to be public highways. 
Attorney-General's Report, 1912, Vol. 2, page 514. 

When the question of the title to lands along waters 
and under ivaters arises, especially as to whether the 
title is in State or individuals, the difficulties begin and in 
this respect reference is had to natural waters only. The 
title to bed of the Erie and other canals like the strip 
along the sides is of course in the State. 

Green Island Ice Co. v. Norton, 105 A. D. 331. 

As to the natural waters of the State, there is encount- 
ered again the conflict between the civil and the common 
law. While on many propositions involving such waters 
there is a sharp clash of principle, the authorities, 
ancient and modern, whether applying the civil law or 
the common law substantially agree that prima facie the 
title to lands under tidal waters whether fiavicjabls ire, 
fact or not is in the sovereign or State from highwater 
mark to highwater mark. 

5 Cyc. 893-902. 

Matter of New York, 168 N. Y. 134. 

Hume V. Packing Co., 92 Pac. 1065. 

Trustees of Brookhaven v. Strong, 60 N. Y. 56. 

Murphy v. Brooklyn, 98 N. Y. 642. 

Coxe V. State, 144 N. Y. 396. 

Sage V. Mayor, 154 N. Y. 61. 

Girard on Title to Real Estate, 933-944. 

Fulton Light, Heat & Power Co. v. State, 200 N. Y. 400. 



278 Game Law Guide 

The overwhelming weight of authority in the various 
state and federal courts is to this effect. 

See People v. Steeplechase Park Co., 218 N. Y. 459. 

This presumption may of course be overcome and is 
not absolute. Under certain circumstances, grants may 
include the lands under tidal waters. 

Paeifle M. & E. Co. v. Portland, 46 L. R. A. 363. 

See Public Lands Law. 

See Smith v. Bartlett, 180 N. Y. 360. 

The authorities also practically agree that prima facie 
the title to lands under the waters of brooks, small 
streams, ponds, small lakes, and non-tidal, non-navigable 
in fact, lakes and rivers, is in the riparian or littoral 
owner — the owner of the banks, shores and adjacent 
upland. The owner of the upland on both sides of the 
waters or surrounding it has title to the wJwle bed. He 
who owns only on one side owns the bed to the center or 
thread of the stream or body of water {ad /ilium aquae). 
These proprietary rights in the bed carry the control of 
the waters subject to the obligation to respect the rights 
of upper and lower riparian ow^ners; and this proposi- 
tion is true where the waters cross the highway. 

Robinson v. Davis, 47 A. D. 405. 

Girard on Titles to Real Estate, 545, 922-933. 

Gouverneur v. Nat. Ice Co., 134 N. Y. 355. 

Tripp V. Richter, 158 A. D. 136. 

Rockefeller v. Lamora, 85 A. D. 254. 

Fuller Light, Heat & Power Co. v. State, 200 N. Y. 400. 

Calkins v. Hart, 64 M. 149. 

This presumption also may be overcome and the 
descriptions and bounds in the conveyances constituting 
the chain of title will govern. They may limit one upland 
owner to the hank or some other point and the opposite 



Private Property Rights in Wild Animals 279 

owner's title may extend clear across the stream or body 
of water including the entire bed. 

Nichols V. Rowland, 52 Him, 287. 

Matter of City of New York, 212 N. Y. 325. 

Mott V. Mott, 68 N. Y. 246. 

This principle is built upon the theory that he who 
conveys the upland will not ordinarily care to reserve the 
bed of the waters, but the grant may be expressly limited 
and the shore and bed reserved. 

All navigable waters in the states are for purposes of 
commerce under the control of Congress. 

29 Cyc. 294. 

U. S. Statutes, 3540-3541. 

Where the authorities strike sparks in an incessant 
clash is on the question of the title to the lands along and 
the beds of non-tidal navigable waters. The cause of 
this conflict and chaos is the failure of the Common Law 
of England in the course of its development to adopt and 
apply the rule and test of the Civil Law as to navigability 
in its application of the general principle of law that the 
title to the beds of navigable waters was presumptively 
in the croivn or state. 

See Willow River Club v. Wade, 42 L. R. A. 305. 

The test under the Civil Law was and is navigability 
or non-navigability in fact regardless of the tidal nature 
of the waters and the presumption that the title to the 
bed is in the sovereign is applied accordingly. 

By the civil law a littoral right of way for purposes 
of navigation, anchorage, rowing, etc., existed on the 
banks, or shores of public streams over private lands. 
Such right, however, has been held not to exist under the 
common law as prevailing in England and this country. 
A special custom however might be shown as conferring 



280 Game Law Guide 

the right. But it probably would not be held to include 
the right of fishing and hunting as a part of the easement. 

See Girarcl on Title to Real Estate, page 941. 
Ball V. Herbert, 3 Term. Rep. 253. 

\ 

The test under the Common Law applying the pre- 
sumption as to the title to the beds of navigahle waters, 
is the presence or absence of the ebb and flow of the tide. 
Its presence renders the waters navigable in law regard- 
less of whether they are so in fact and if non-tidal the 
prima facie title to the hed is in the upland owner subject 
to the public easement of passage and navigation. 

At common law, a conveyance of land bounded on a 
river or stream in which the tide does not ebb and flow, 
although navigable in fact, is presumed to carry title to 
the thread of the stream. 
5 Cyc. 895. 

This presumption may of course be overcome just as 
in the case of the inile as to waters non-navigable in fact 
and non-tidal. 

This sharp conflict was carried over from the mother 
countries into the various territories now comprising our 
various states. Wherever Spanish, French or Dutch con- 
quest or dominion originally obtained, there is a leaning, 
though not a consistent one toward the rule of the civil 
law. Where English Conquest and dominion occurred, 
the tendency of course was to apply the common law 
rule, but it has led to constant trouble owing to the pal- 
pably different conditions existing in the British Isles 
and those found in our vast territory. 

Both rules have been applied to the largest rivers in 
the country, the Missouri and the Mississippi. The Fed- 
eral Courts incline to the civil law and have applied it in 
some of the territories before they became states. 

Wilson V. Watson, 35 L. R. A. 227. 



Private Property Rights in Wild Animals 281 

However out of the confusion of authorities is found 
a substantial agreement among them to the effect that 
the common law rule cannot apply to the great inland 
lakes and rivers of the country nor to the fresh waters 
constituting State and National boundaries. 

Miller v. Mendenhall, 8 L. R. A. 89. 

People ex rel. B'umham v. Jones, 112 N. Y. 597. 

This would beyond question place the title to the beds 
of Lakes Erie, Ontario and part of Lake Champlain, the 
Niagara river and the Delaware river where it consti- 
tutes a boundary between New York and Pennsylvania, 
presumptively in the State from Jiighiuater mark, giving 
along the shore at ordinary times a stronger right to the 
public than the littoral right of way conferred on the 
public by the civil law. 

Compare Lenoir Co. v. Crabtree, 39 L. R. A. 1213. 
Border Island Co. v. Cowles Co., 94 M. 340. 

New^ York State is peculiarly unfortunate in respect to 
this conflict between these two rules in that to the same 
sets of facts and circumstances, our courts have applied 
both rules and have reversed themselves. 

The situation of the Hudson and Mohawk rivers is 
unique in comparison with other waters of the State. 
Prior to 1644 the Dutch were exercising dominion over 
the greater portion of these rivers and their valleys. 
The Dutch in that year capitulated to the English and 
all the inhabitants were confirmed in their rights of 
property. Sovereignty again passed to the Dutch by 
conquest in 1673, but by the treaty of Westminster in 
1674, New Netherland was again restored to King 
Charles II of England and it remained under English 
rule until the revolution. 

See Appleby v. City of New York, 163 A. D. 680. 

For these reasons the title granted to the original set- 
tlers in the valleys of these rivers and all grants under 



282 Game Law Guide 

Dutch dominion as construed by the civil law prevailing 
in the Netherlands, did not include to the riparian owners 
the banks or beds of the rivers. Upon the surrender of 
this territory the guaranty assured by the English 
authorities to its inhabitants of the peaceable enjoyment 
of their possession simply confirmed the right already 
possessed and the beds of these navigable streams never 
having been conveyed became by virtue of the right of 
sovereignty vested in the English Crown as ungranted,, 
unappropriated lands and the State of New York as a 
consequence of the revolution succeeded to all the rights 
of the English Crown. 

This proposition is aside from the tidal character of 
the waters from the standpoint of the common law. 

See section 300 on Marine District. 

Canal Appraisers v. People, 17 Wendell, 571. 

Commissioners v. Kempshall, 26 Wendell, 404. 

Smith V. Rochester, 92 N. Y. 463. 

Mott V. Clayton, 9 A. D. 181. 

Fuller Light, Heat & Power Co., 200 N. Y. 400. 

On the contrary whenever a grant was made under 
English dominion the com.mon law rule crept in and the 
the presumption arose that the beds were conveyed by 
the patent to the grantees subject to the public easement 
of navigation unless expressly excepted and reserved, in 
spite of any tidal character of the waters. 

See section 300 on Marine District. 
Williams v. Utica, 217 N. Y. 162. 
Danes v. State, 169 A. D. 443. 
Hinekel v. Stevens, 165 N. Y. 171. 

While this disposes of the Hudson and the Mohawk, 
there is still a discord and confusion as to the beds of the 
balance of the inland waters of the State as to which 
there are two sharply defined, conflicting lines of 
authorities. 



Private Property Rights in Wild Animals 283 

By virtue of the principle that the common laiv in so 
far as applicable to our conditions became absorbed by 
and a part of the law of this State as declared by the 
Constitution, we are confronted by the application of 
that rule. For as a general jDroposition in the absence of 
statute, the common law will prevail. 

The case of Hooker v. Cummings, 20 Johnson, 90, 
involving the bed of the Salmon river in what was then 
Oswego county, decided in 1822, following the lead of 
People v. Piatt, 17 Johnson, 195, involving the Saranac 
river in Clinton county, decided in 1819, applied the 
common law rule to all fresh, navigahle ivaters of the 
State except the Hudson and Mohawk, holding that pre- 
sumptively the title to the beds of all these waters was in 
the riparian owner. 

In the case of Commissioners v. Kempshall, 26 
Wendell, 404, involving the Genesee river, decided in 
1841, the same proposition was held to, deeming the 
common law rule adopted and applicable to the fresh 
navigable waters of the State. 

On the contrary the case of People v. Canal Apprais- 
ers, 33 N. Y. 461, involving the Mohawk, decided in 1865, 
following the lead of People v. Tibbitts, 17 Wendell, 570, 
involving the Mohawk, decided in 1836 and Starr v. 
Child, 20 Wendell, 149, involving the Genesee, decided in 
1838, explicitly repudiated Hooker v. Cummings and 
flatly held that the conmnon laiv rule was wholly inap- 
plicable to this country and the waters of this State, con- 
trasting the conditions in England and in our territory. 

The case of Smith v. Rochester, 92 N. Y. 463, decided 
in 1883, involving Hemlock lake, repudiated People v. 
Canal Appraisers as applicable only to the Hudson and 
Mohawk under the civil law rule and reaffirmed the appli- 
cation of the common laiv rule as declared in Hooker v. 
Cummings, to all other fresh, navigable waters of the 
State. 



284 Game Law Guide 

In the case of Geneva v. Henson, 140 A. D. 49, involv- 
ing the title to the bed of Seneca lake, decided in 1910, in 
which case two referees reported opposite ways on the 
facts and the law, Smith v. Rochester was apparently 
limited to the smaller lakes and rivers. 

Compare Geneva v. Henson, 195 N. Y. 447. 

It seems that under the civ'il law that in the case of 
na\dgable waters what are known to the common law as 
the jus publicum (the public easement over the waters) 
and the jus privatum (the proprietary title to the bed 
and all not involved in the public easement of navigation 
and passage) were practically one. Under the common 
law the jus publicum was in the crown or sovereign in 
trust for the public and was inalienable; the jus priva- 
tum was in the crown as a proprietor and could be 
granted and conveyed. The rule seems to be that in this 
State the jus privatum was abandoned to the owners of 
the upland unless expressly reserved or unless the grant 
was limited. 

Lewis V. Utica, 159 A. D. 160, 217 N. Y. 162. 
Town of Brookhaven v. Smith, 188 N. Y. 74. 

The solution of all this confusion seems to be to exam- 
ine the title of the lands under water just as ordinary 
lands bearing in mind the presumptions. To do this the 
search must begin with what is known as the Treaty of 
Hartford. In 1628 the King of Great Britain granted in 
fee to the colony of Massachusetts Bay, certain described 
lands on the Atlantic coast and then by a general grant 
included the lands within the lines of latitude across the 
entire continent which in sweep took in practically all of 
the present State of New York. 

In 1664 Charles II conveyed by grant to the Duke of 
York a large tract of land which embraced much of the 
territory included in the grant already referred to, par- 
ticularly what are now the central and southwestern 
parts of the State. This raised a dispute which con- 



Peivate Propeety Rights in Wild Animals 285 

tinued down to the creation of the states and the State 
of New York and the commonwealth of Massachusetts as 
successors to the title and the contention, after the mat- 
ter had been brought to the attention of Congress, entered 
into the treaty of Hartford in 1786, through Commis- 
sioners appointed for the purpose and the treaty was 
ratified by the respective states. 

By this treaty, Massachusetts ceded to New York, all 
claim which she had as a sovereign to the government 
and jurisdiction of the territory in question and ceded to 
New York all lands east of what was kno^\ai as the 
pre-emption line running from the northern boundary of 
Pennsylvania through the center of Seneca Lake and on 
into Lake Ontario. New York ceded to Massachusetts as 
an individual proprietor all lands ivest of the pve-eniptiov 
line. 

Seneca Indians v. Appleby, 127 A. D. 770. 



This treaty has been referred to and discussed in many 
oases, some of the most important of which are : 

Commissioners v. Kempshall, 26 Wendell, 404. 
Smith V. Rochester, 92 N. Y. 463. 
Geneva v. Henson, 140 A. D. 49. 
Seneca Nation v. Christie, 126 N. Y. 122. 

It was generally held that as to lands under water 
west of the pre-emption line, Massachusetts held the jus 
privatum including the title to the bed and that New 
York held the jus publicum. As to the territory to the 
east of the line except in so far as the jus privatum had 
been by prior patent under the English Crotun granted to 
individuals, both the jus publicum and jus privatum 
were vested in the State of New York. 

Seneca Nation v. Christie, 126 N. Y. 122. 

Li Geneva v. Henson, (195 N. Y. 447), 140 A. D. 51, 
202 N. Y. 545, it was finally intimated that the State could 
not be deemed to have reserved the ivaters of Seneca lake 



286 Game Law Guide 

and parted with title to the west half of the bed and the 
decision repudiated Smith v. Rochester as to the larger 
bodies of water in the western part of the State covered 
by the treaty. The Court of Appeals held that regard- 
less of the treaty the question of title should be deter- 
mined by the deeds in the chain of title. It seems that 
Henson's deed ran to the lake and thence along the shore 
thereof, and it appears to have been held, apart from the 
effect of the treaty, that the bed of the lake was not 
conveyed. 

Compare Geneva v. Henson, 202 N. Y. 545. 

The Attorneys-General of the State have locked horns 
on this proposition. 

In the reports of 1905, page 324, the' doctrine of Smith 
V. Rochester is adhered to and the beds of the navigable 
non-tidal waters are held to be owaied by the upland 
proprietor subject to the public easements. 

In 1908 the Attorney-General rendered the following 
opinion in connection with barge canal lands (page 248) : 

" The deeds between riparian owners are not conclusive upon the 
state as to their rights in streams and shouki not govern in the prepa- 
ration of appropriation maps and descriptions of upland to be taken. 
Where the state owns the bed and waters of a stream, its title extends 
to the highwater mark, on both hanks, if the banks are owned by pri- 
vate proprietors. 

Generally speaking, the state should be treated as the proprietor of 
the bed and waters of the Hudson, Mohawk, Oswego, Seneca, Genesee 
and Niagara rivers and Tonawanda and Nortliem Wood creeks. That 
statement, however, probably needs qualification in respect to the head- 
waters of those streams, where they are so small as never to have been 
actually navigable. At the present time it of course requires some 
research to determine where that point would be in rivers which were 
formerly navigated by much smaller craft than are now used. 

In respect to the bi'anehes of these rivers named unless such branches 
are navigable within the above definition, they should be treated as 
wholly private." 

See section 21. 



Private Property Rights in Wild Animals 287 

In 1913, the Commissioners of the Land Office were 
advised that they had no power to make irrevocable 
grants of land under the waters of navigable streams and 
that all grants should contain a clause expressing a 
power of revocation and reserving the right explicitly. 

Attorney-General's Report, Vol. II, page 405. 

It has been stated that the rights of the State in the 
bed of navigable streams was sovereign and not pro- 
prietary and that it would only grant the use as the title 
was in the people of the State. 

Attorney-General's Report, 1912, Vol. II, page 576. 
See Public Lands Law, article 12. 

The cases cited, People v. N. Y. S. F. Co., 68 N. Y. 71, 
and Coxe v. State, 144 N. Y. 396 deal, however, with 
tidal waters. 

It would seem, therefore, out of all this conflict of 
opinion and authority that if any presumption obtained 
to the west of the line it would be in favor of Massachu- 
setts and her successors as to the lands under the smaller 
bodies of ivater, and in favor of Neiu York as to the lands 
under the larger bodies of ivater; either one of the pre- 
sumptions to be overcome by the respective deeds and 
their descriptions and limitations. 

To the east of the line, the presumption would appear 
to be in favor of the State as to any beds of waters, 
navigable in fact leaving it for him who claims to the 
contrary to show that the State has parted with the title. 

As to any of these beds of waters on either side of the 
line, the State may of course have parted with the title 
through patent or grant particularly where grants of 
immense tracts of land have been made and the question 
must be determined in the end like any other question of 
title to real estate, the description, metes, bounds, excep- 
tions and reservations contained in the consecutive 
conveyances, governing. 

Burnham v. Jones, 112 N. Y. 597, 



288 Game Law Guide 

See Section 1957 of the Code of Civil Procedure as to 
actions to vacate letters patent. 

As to patents including the bed of the waters, 

See Lewis v. Utica, 217 N. Y. 162. 

i 

Where the lines run to the lake, or river and then 
along it, the bed seems to be included ; when they run to 
highwater mark, low^vater mark, the bank, etc., and then 
along it, the bed seems to be excluded. 

Fulton L., H. & P. Co. v. State, 200 N. Y. 400. 
See Wheeler v. Spinola, 54 N. Y. 377. 
See 5 Cyc. 893-903. 

There are other questions affecting the title to lands 
under water, one of which involves what is called 
avidsion. This occurs where there is a sudden violent 
shift in the course of a stream or the formation of its 
bed and such a change does not alter the former situation 
as to the title to the land. 

5 Cyc. 904. 

Whiteside v. Norton, 45 L. R. A. 112. 
State V. Bowen, 39 L. R. A, 200. 
Fowler v. Wood, 6 L. R. A. 162. 
Mulry V. Norton, 100 N. Y. 424. 

Where, however, by the natural process of accretion 
by slow and imperceptible degrees alluvium is deposited 
on the bed or against the shore and land is thus formed 
the title to the deposits is in the owner of the bed. 
Islands formed in the stream or a body of water follow 
the same rule and belong to the person owning the bed 
on which they are formed. Accretion is the process and 
alluvium, the deposit. 

29 Cyc. 370-372. 
Fowler v. Wood, 6 L. R. A. 162. 
Kinkead v. Turgeon, 7 L. R. A. 316. 
Mulry V. Norton, 100 N. Y. 424. 
Wilson V. Watson, 35 L. R. A. 227. 



Private Property Rights in Wild Animals 289 

Carson v. Turk, 42 L. R. A. 384. 
Cook V. McClure, 58 N. Y. 437. 
Matter of Commissioners, 37 Hun, 537. 
Steers v. Brookljii, 101 N. Y. 51. 

In cases where by reliction or recession there has been 
a permanent subsidence of the waters leaving what was 
formerly the bed of the waters, dry exposed land two 
lines of authorities are to be found. One line of decisions 
holds that such land should go to the upland owner as 
compensation for lands flooded in the past, but the better 
and more approved ride seems to be that whose it was 
as the bed of the waters, it still is as the bed exposed. 

Powell et al. v. Rochester, M. (1916). 

Holman v. Hedges, 112 Iowa 714. 
Colley V. Golden, 21 L. R. A. 300. 
Fuller V. Shedd, 33 L. R. A. 146. 
Hodges V. Williams, 95 N. C. 331. 
Kinkead v. Turgeon, 74 Neb. 580. 
Mulry V. Norton, 100 N. Y. 424. 
Ruling Case Law, Vol. I, pages 227-248. 

As against the above principle of reliction, it must be 
conceded that the State or any individual proprietor 
might have lost title to the exposed lands or the enclosed 
bed of waters through adverse possession or tax sales. 

See Gouvemeur v. National Ice Co., 57 Hun, 474 (134 N. Y. 
355). 

As to adverse possession against the State generally, 
see Hamlin v. People, 155 A. D. 680. 

According to the principle already stated that pre- 
sumptively hunting and fishing rights upon and in 
waters belong to the o^^aler of the bed of the waters, it 
has been held that the right of fishing and fowling in and 
on tidal waters is a public one. 

19 Cyc. 993. 

Butler V. Attorney-General, 8 L. R. A. 1047. 

Girard on Titles to Real Estate, 945. 

19 



290 Game Law Guide 

The exclusive right to fish and hunt in and over non- 
navigable non-tidal waters is vested in the riparian 
owners. 

Rockefeller v. Lamora, 85 A. D. 254. 

With the exception of tlie great lakes and the boundary 
waters, the overwhehning weight of authority is to the 
effect that presumptively the riparian owners along 
navigable non-tidal waters have the exclusive right to 
hunt and fish thereon and therein. The ownership of the 
bed carries with it the exclusive hunting and fishing 
rights. The public easement of passage and navigation 
does not include the right to fish and to hunt. 

Hooker v. Cummings, 20 Johnson, 90. 

Girard on Titles to Real Estate, 945. 

Rockefeller v. Lamora, 85 A. D. 254. 

19 Cyc. 993. 

Slingerland v. Int. Cons. Co., 43 A. D. 215. 

Matter of Deposit, 131 A. D. 403. 

People V. Doxtater, 75 Hun 472. 

Hartman v. Tresise, 4 L. R. A. 873. 

Sterling v. Jackson, 37 N. W. Rep. 45. 

Ne-pee-Nauk Club v. Wilson, 96 Wis. 290. 

State V. Shannon, 36 Oliio St. 423. 

Beatty v. Davis, 20 Ont. 373. 

Chenango Bridge Co. v. Paige, 83 N. Y. 178. 

Schulte V. Warren, 13 L. R. A. 745. 

People V. Truckee Co., 116 Cal. 397. 

If the title to the bed of the waters is in the State the 
rights of hunting and fishing are in the public. If the 
title to the bed of the waters is the riparian owners, the 
control of hunting and fishing over and in the waters is 
theirs. 

As was said in Sterling v. Jackson: 

" The defendant claims that he had a right to shoot the wild fowl from 
his boat, because, as the waters were navigable where he was, he had 
the right to be there; that, there being no property in wild fowl until 
captured, if he committed no trespass in being where he was, no 
action will lie against him for being there and shootiag the wild duck. 



Private Property Rights in Wild Animals 291 

There is a plausibility in the position, which, considered in the 
abstract, is quite forcible, and if applied to waters where there is no 
private ownership of the soil thereunder would be unanswerable. But, 
so far as the plaintiff is concerned, defendant had no right to be where 
he was, except for the purpose of pursuing the implied license held out 
to the public of navigating the waters over his land. So long as that 
license continued, he could navigate the water with his vessel, and 
do all things incident to such navigation. He could seek the shelter 
of a bay in a storm, and cast his anchor therein, but he had no right 
to construct a ' hide ' nor to anchor his decoys for the purpose of 
attracting ducks within reach of his shotgun." 

And it was stated in State v. Shannon : 

" True, navigable streams in this state are declared to be public 
highways, but the right to use a public highway is not abridged by 
protecting the owner of the fee in the exclusive right of killing game 
therein." 

Most of the legislative acts declaring streams navi- 
gable which were not so in fact have been invalidated as 
unconstitutional. 

Girard on Titles to Real Estate, 923. 
Hartman v. Tresise, 4 L. R. A. 873. 
DeCamp v. Dix, 159 N. Y. 436. 

In Turner v. Hebron, 14 L. E. A. 386, it was held that 
fishing rights belonged with the ownership of the waters 
apart from the bed, but this case does not seem to have 
been followed. Water seems generally to be treated as 
something incapable of absolute ownership. And the 
legislative acts as to the waters of the rivers and lakes 
in the State appear to be confined to the regulation of 
navigation and aid of the canal system. 

Sweet V. Syracuse, 129 N. Y. 316. 
Selby Co. V. State, 104 N. Y. 562. 

The above common law rule as to the ownership of the 
bed of the waters carrying ivith it the exclusive rights so 
settled by the decisions does not appear to have been 
abrogated by statute. 



292 Game Law Guide 

There is also no right of way across private property 
to navigable waters. 

State V. Gunn, 170 Mass. 509. 

In view of the decision in Geneva v. Henson, 140 A. D. 
49, it seems that as to the inland, non-tidal waters of the 
State which are navigable in fact, the presumption might 
be that the title to the bed is still in the State and the 
fishing and hunting rights on and in such waters, public. 
The courts, however, have apparently never held so, as 
can be readily seen by the authorities quoted. Each case 
must evidently be determined on its own facts and cir- 
cumstances in the light of the presumptions referred to 
and the decisions cited. 

Where the title to the lands in question is in the State, 
the restrictions as to the taking of the fish or game found 
thereon except for such prohibitions as are presented 
by sections of the Penal Law, are contained in the 
provisions of the Conservation Law. 

See sections 54, 176, 366. 

Where, however, the title to the lands is in a private 
individual, as has been already intimated, there is 
apparently vested in the owner of the soil subject to the 
state regulations for the protection of fish and game, a 
special, quasi or qualified property right in and to the 
game and fish found upon it. As to this property right, 
there are encountered the same two conflicting rules of 
the civil law and the common law. 

See State v. Mallory, 67 L. R. A. 773. 

This peculiar property right has never been held to be 
of such a nature as to make the owner of the land liable 
for the acts of any such animals while on it. 

The right to pursue and take wild animals anywhere 
without let or hindrance originally obtained and con- 



Peivate Peopekty Rights in Wild Animals 293 

tinned until the community ownership of land was 
abandoned when a recognition of land title rather than 
a property in animals ferae naturae prevented the pur- 
suit of game on the land of another ; barring all questions 
of trespass, individual property in them became vested 
in the person reducing them to possession prior to which 
time no individual could claim exclusive right to them. 

James v. Wood, 82 Maine 173. (8 L. R. A. 448.) 

The above was the rule of the civil law. As between 
the oivner of the land and the trespasser, the latter 
acquired title to the game taken although it was con- 
ceded that the owner could forbid and prevent the tres- 
pass before or after the killing of any game. 

Justinian, Book 2. 

Geer v. Connecticut, 161 U. S. 519. 

State V. Mallory, 67 L. R. A. 773. 

The rule of the common law is different. As to ani- 
mals in their state of nature there properly speaking is 
no exclusive property right in them except the right to 
have such animals as voluntarily come upon the land, 
remain there undisturbed and it has been claimed it is 
this special right in defense of which in the main, the 
parking and posting law has been enacted. 

For driving the game off the land an action at common 
law has been said to lie. 

Am. & Eng. Eneyc, Vol. XIV, page 657. 
Ingham on Animals, 572-575. 

The common law recognized three distinct forms of 
this quasi property. 

1st: That arising from the ownership of the land 
{ratione soli) ; the right of any owner of land at common 
law to kill and take such animals ferae naturae as were 
from time to time found upon this land, for while 



294 Game Law Guide 

living they partake of the quality of the soil and they 
feed on his lands and crops. 

See Ferguson v. Miller, 1 Cowen, 243. 
See State v. Mallory, 67 L. R. A. 773. 

2d: That arising from a privilege granted on lands 
{propter privilegium) under early English law when the 
title to game was deemed in the crown as a proprietor 
and was granted in the nature of an exclusive privilege 
or franchise. 

2 Blackstone, 394, 413, 419. 

3d: That arising from the comparative helplessness 
of nesting birds and breeding animals especially those in 
burrows and their young {ratione impotentiae) by reason 
of their inability to make use of their liberty and forsake 
him. 

2 Blackstone, 394. 

This first right was lost by the animals quitting the 
land or even being hunted off and no action seems to lie 
for intercepting their course or flight or preventing their 
coming. . , 

Hannam v. Moekett, 2 B. & C. 934. 
Meredith v. Triple Island Club, 38 L. R. A. 286. 
Sutton V. Moody, 1 Ld. Raymond, 250. 
Graham v. Ewart, 11 Exchequer, 326. 
Wickham v. Hawker, 7 M. W. 63. 

In Hannam v. Moekett, it was said property ratione 
soli in wild animals exists only while they are voluntarily 
on the land of the claimant ; the fact that they voluntarily 
and habitually resort to his land to breed gives him no 
right of action against one who prevents their coming. 
But it was intimated that an exception should be made 
in favor of a person who by expenditure of money and 
labor decoyed wild animals of intrinsic value, to his 
premises and conducts a business of raising and selling 
them for profit. 



Peivate Property Rights in Wild Animals 295 

Tlie second was likewise lost by their quitting the 
liberty. 

2 Blackstone, 394. 

Sutton V. Moody, 1 Ld. Raymoud, 250. 

The third was lost by their attaining strength and 
growth and leaving the premises. 

2 Blackstone, 394. 

Except for these mentioned rights there was no pri- 
vate property in wild animals as long as they remained 
in the state of nature. 

2 Blackstone, 391. 
State V. Mallory, G7 L. R. A. 773. 
Schulte V. Warren, 13 L. R. A. 745. 
James v. Wood, 82 Me. 173. 
State V. Sumner, 2 Ind. 377. 
State V. Niles, 78 Vt. 266. 

The above qualified rights were absolute against a 
trespasser and in violation thereof he acquired no title 
to the game taken. 

The act of reducing an animal ferae naturae into pos- 
session where title is thereby created, must not be 
wrongful and if such an act is effected by one who is at 
the moment a trespasser, no title to the property is 
created in him, but vests in the owner of the soil and the 
wrongdoer is liable for trespass and conversion; and the 
mere finding of wild animals on the lands of another does 
not vest in the finder any title to or property in them. 

Blades v. Higgs, 11 H. L. Cases, 621. 
Haifer v. Salloway, 58 Fla. 255. 
State V. Repp, 104 Iowa, 305. 
Commonwealth v. Chaee, 9 Pick. 15. 
Rexroth v. Coon, 15 R. I. 35. 
Merrils v. Goodwin, 1 Root, 20. 

As it is stated in Am. & Eng. Ency. and in Cyc. : 

Every owner of land has a common law right to kill and take all such 
game ferae naturae as may be found on his land and as soon as this 



296 Game Law Guide 

right is exercised, the animals so killed or caught become the absolute 
property of the owner of the soil. 

The act of reducing an animal ferae naturae into possession must 
not be wrongful and if such an act is effected by one who is at the 
moment a trespasser no title to the property can be created. 

Am. & Eng. Encyc, vol. II, page 344. 
2 Cyc. 307-309. 

Substantially the same propositions are asserted in 
Am. & Eng. Encyc, vol. 14, pages 655-656 where the 
rationale of the " English rule " applicable to lands and 
estates upon which the exclusive hunting and fishing 
rights of owners are protected against poachers, is set 
forth. 

(Citing the English Cases and Authorities.) 

This property right may be restricted and taken away 
by statutory regulation of the right to hunt during close 
season and then the owner loses temporarily his qualified 
property in animals. 

State V. Theriault, 70 Vt. 617. 
Zanella v. Bolles, 80 Vt. 345. 
State V. Mallory, 67 L. R. A. 773. 

The property right seems to be absolute as to the 
animals killed or rendered incapable of escape. 

It is qualified, as to those taken but still capable of 
escape and is lost by their escape. 

It is special or quasi as to animals in a state of nature 
on the land. 

These rights may be said to be defeasible by the 
animals only. 

2 Cyc. 309. 

For the invasion of these common law qualified prop- 
erty rights, trespass, conversion, replevin and recaption 
apply as well as the right to use such force as is necessary 
to prevent interference therewith. 



Pkivate Property Eights in Wild Animals 297 

The most important English cases on this property 
right ratione soli are perhaps Sutton v. Moody, 1 Ld. 
Raymond, 250, and Blades v. Higgs, 11 H. L. Cases, 621. 

In the first case a distinction was made between an 
animal started on the lands of one person and killed on 
those of another; and a case where the animal was both 
started and killed on the same person's land. In the 
former instance the hunter became the owner of the 
animal though liable in trespass to both of the land 
owners ; in the latter instance, he was both a trespasser 
and the title to the animal was in the oivner of the land. 

So it was held that where A stood on his own or B's 
land and shot an animal started on the land of C, the title 
to the animal was in A; but where A stood on the high- 
way and shot an animal on the land of B, no title to the 
animal was acquired. 

Osbond V. Meadows, 12 C. B. 10. 
Mayhew v. AVardley, 14 C. B. 550. 

Under the rule laid down in Sutton v. Moody, many 
complications and perplexities might arise. 

For instance: 

If a quadruped or bird was started and wounded on 
the lands of B and escaped to the lands of C and was 
killed by A, then the property would be in A. 

If a bird was flushed on the lands of B and though 
wounded flew or after falling, escaped to the lands of C, 
the hunter would own it. 

If a bird or quadruped wounded or unwounded was 
reduced to actual possession on the land of B and with- 
out design on the part of the hunter, of its own volition 
escaped to the lands of C and was killed there, the 
property would be in the hunter. 

If a bird was killed in the air over B's land, but in 
falling dropped on the land of C, another problem would 
arise, and in this connection, it was held in the case of 
Kenyon v. Hart, 11 L. T. N. S. 733, that where A upon 



298 Game Law Guide 

his owTi land shot at a pheasant which rose from his land, 
but the act of shooting took place while the pheasant was 
in the air over B's land and the pheasant fell dead on 
B 's land, the bird belonged to A. 

If a bird or quadruped was started on the land of B 
and whether wounded or not, escaped to the lands of C, 
but returned to the lands of B, where originally found and 
was there killed or reduced to actual possession, then the 
property in it would be in B. 

To avoid these unnecessary perplexities, the case of 
Blades v. Higgs seems to have put the property in him 
on whose land the animal is reduced to actual possession 
regardless of where it was started. This case decided in 
1865 so fully sets forth the common law principle of pri- 
vate property rights in mid animals as between the 
owner of the land and others that the following extensive 
quotations are made from it : 

(Lord Westbury.) — " When it is said by writers on the Common Law 
of England that there is a qualified or special right of property in 
game, that is in animals ferae naturae which are fit for the food of 
man, whilst they continue in their wild state, I apprehend that the 
word ' property ' can mean no more than the exclusive right to catch, 
kill, and appropriate such animals which is sometimes called by the 
law a reduction of them into possession. 

" This right is said in law to exist ratione soli, or ratione privilegii, 
for I omit the two other heads of property in game which are stated 
by Lord Coke, namely propter industriam and ratione impotentiae, for 
these grounds apply to animals which are not in the proper sense 
ferae naturae. Property ratione soli is the common law right which 
every owner of land has to kill and take all such animals fera naturae 
as may from time to time be found on his land, and as soon as this 
right is exercised the animal so killed or caught becomes the absolute 
property of the owner of the soil. 

" Property ratione privilegii is the right which, by a peculiar franchise 
anciently granted by the Crown in virtue of its prerogative, one man 
had of killing and taking animals ferae naturae on the land of another; 
and in like manner the game, when killed or taken by virtue of the 
privilege, became the absolute property of the owner of the franchise, 
just as in the other case, it becomes the absolute property of the 
owner of the soil. 



Private Property Eights in Wild Animals 299 

" The question in the present ease is whether game found, killed, and 
taken upon my land by a trespasser becomes my property as much as 
if it had been killed and taken by myself, or my servant by my 
authority. 

" Upon principle, there cannot, I conceive, be much difficulty. If 
property in game be made absolute by reduction to actual possession 
such reduction must not be a wrongful act, for it would be unreasonable 
to hold that the act of the trespasser, that is of a wrong doer, shall 
divest the owner of the soil of his qualified property in the game, and 
give the wrong doer an absolute right of property to the exclusion of 
the rightful owner. 

" But in game, when killed and taken, there is absolute property in 
some one, and therefore the property in game found and taken by a 
trespasser on the land of A., must vest either in A. or the trespasser, 
and if it be unreasonable to hold that the property vests in the tres- 
passer or wrong doer, it must of necessity be vested in A., the owner 
of the soil. 

'' This view of the case is supported by a series of decisions. In the 
case of Sutton v. Moody, 1 Ld. Raym. 250, Lord Chief Justice Holt 
deduced several conclusions from the Year Books on the subject of 
property in game. Among these are the following propositions : ' If 
A. starts a hare in the grounds of B., and hunts it and kills it there, 
the property continues all the while in B.' 

" In the case thus put it must of course be taken that A. has hunted 
and killed the hare without the leave or license of B., and therefore 
that it is a wrongful act by A. which enures for the benefit of the 
true owner, viz B. the owner of the soil. 

"Another proposition is, that if A. starts game in the forest or 
warren of B. and hunts it into the grounds of C. and there kills it, 
the property is in B. the proprietor of the chase or warren, because 
the privilege continues, and consequently B. is entitled to the absolute 
property in the dead game so chased and killed by A., who from the 
statement of the ease must be taken to have acted without the license 
of B., and therefore to have been a trespasser. 

"A third proposition is, that if A. starts a hare in the groiinds of B. 
(who is entitled ratione soli only, for that is plainly implied), and hunts 
it into the ground of C, and there kills it, the property is in the hunter; 
for it cannot be in B'., who is entitled ratione soli only, and not ratione 
privilegii, for the hare is not killed upon his land; and it cannot be 
in C, for the game was not originally found in his possession, but was 
only driven upon his ground by the chase and pursuit of the hunter. 

" These propositions appear to me to prove clearly that game found 
and killed by a trespasser under such circumstances as that it would 



300 Game Law Guide 

be the absolute property of the owner of the soil, or of the owner of 
the right of free waiTen, if it had been found and killed by such 
owner, instead of by the trespasser, does in law become the absolute 
property of the proprietor of the soil or privilege, immediately on its 
being so caught and killed by the trespasser. 

" The law, so laid down in Sutton v. Moody, is consistent with several 
earlier cases decided subsequently to the Year Books of which I will 
mention one, Coney's Case, Godf. 122, which has been recognized 
and acted upon in several subsequent decisions. Of these I may men- 
tion Churchward v. Studdy, 14 East, 249, G-raham v. Ewart, 11 Exeh. 
326, 1 H. & N. 550. See 7 H. L. Cas. 331, and lastly, the Earl of 
Lonsdale v. Rigg, 11 Exch. 654, 1 H. & N. 923, in the Courts of 
Exchequer and Exchequer Chamber, on which so much reliance was 
placed by the Courts of Common Pleas and Exchequer Chamber, 12 
C. B. N. S. 501, 13 C. B. N. S. 844, in their decision of the present case. 

" With respect to this ease of Lonsdale v. Rigg, I entirely concur 
in the observations of Mr. Justice Blackburn, and consider that case 
as a conclusive authority upon the point before ns, which it is not 
desirable to question or disturb. 

" The case, when properly considered, amounts to this : grouse were 
shot and taken away by a trespasser upon and from the land of the 
plaintiff, who brought trover for the dead grouse, and it was clearly 
held by the Judges of the Court of Exchequer and afterward by all 
the judges in the Court of Error, that the grouse as soon as they 
were killed and fell upon the land of the plaintiff, became and were 
his absolute property in respect of his ownership of the soil. 

" This conclusion would not be affected even though it might be true 
that an indictment at common law would not lie against the trespasser 
for killing and carrying away of game, if it be one continuous act, 
inasmuch as the ownership of the game is considered as incident to 
the property in the land. But this consequence is the result of a 
peculiarity in the law of larceny, which holds that the act of serving 
and taking away things attached to the freehold is not a felonious 
taking, a result which does not affect the existence of the right of 
property." 

(Lord Cranforth.) — "It v/as argued before the House that if game 
killed by a poacher is the property of the owner of the soil, then every 
poacher is guilty of larceny. But that is a fallacy. Wild animals whilst 
living, though they are, according to Lord Holt, the property of the 
owner of the soil on which they are living, are not his personal chattels, 
so as to be the subject of larceny. They partake, while li^'ing, of the 
quality of the soil, and are, as growing fruit was, considered as a 
part of the realty. If a man entered my orchard and filled a wheel- 
barrow with apples, which he gathered from my trees he was not 



Private Property Rights in Wild Animals 301 

guilty of larceny (see now the Statute 24 and 25 Vict., c. 96, No. 36), 
though he had certainly possessed himself of my property; and the 
same principle is applicable to wild animals. 

" It was further said that the late Game Act which authorizes the 
stopping of a poacher having game in his possession, and the selling 
of the game for the benefit of the pai'ish, shows that the Legislature 
could not have understood the game to be the property of the person 
on whose land it was killed, for in that case it was said it would have 
been an unjust approi^riation of the property of another; but this 
provision in the statute was probably made because it might often be 
impossible to know on whose land every particular head of game had 
been killed, and was considered to be on the whole an arrangement 
beneficial to the land owner." 

(Lord Chelmsford.) — "The question to be determined on this appeal 
is, wliether animals fe)-ae naturae, killed or reduced into possession by 
a trespasser on the land of another, become the property of the owner 
of the land. 

" The case was very learnedly argued on both sides, and all the 
authorities with respect to i^roperty in wild animals, either in a state 
of nature and reclaimed, were fully examined, and both the civil and 
the common law were referred to for doctrine on the subject. 

" By the civil law, the person who took or reduced into possession 
any animal ferae naturae, although he might be a trespasser in so 
doing, acquired his property in it. This appears clearly from the 
passage in the Institutes cited in the argument. If the same rule 
prevails in our law, then the rabbits in cjuestion were not the property 
of Lord Exeter, but of the poacher who took and killed them upon 
his Lordship's land. 

" This doctrine, however, as to the right of property in wild animals 
captured, seems never to have prevailed in our law to its full extent. 
With respect only to live animals in a wild and unreclaimed state, 
there seems to be no difference between the Roman and the common law. 

" With respect to wild and unreclaimed animals therefore, there can 
be no doubt that no property exists in them so long as they remain in 
the state of nature. It is also equally certain that when killed, or 
reclaimed by the owner of the land on which they are found, or by his 
authority, they become at once his property, absolutely when they are 
killed, and in a qualified manner when they are reclaimed. 

" So far everything is clear, and the only difficulty which arises upon 
the subject of property in wild animals, is that which the present 
case presents. 

"As animals ferae naturae when killed or reduced into possession by 
the owner of land where they are found, or by his authority, become 
instantly his property, does the unauthorized act of a trespasser, by 



302 Game Law Guide 

the very fact of killing them, convert them at once to the use of the 
owner of the land. 

" To this question Lord Holt, according to the case which he puts in 
Sutton V. Moody, would have given a distinct answer, that provided 
the game was hoth started and killed on the ground of the same owner, 
the property would be in him. 

" I think Lord Holt must have been of opinion that as long as the 
game continued upon the land there was a species of property or 
rather perhaps a right to take it, existing in the owner of the land, 
which was sufficient to make it his the instant, by being killed or taken, 
it became the subject of property. But I cannot so easily discover the 
principle upon which he proceeds when he said that ' If A. starts a 
hare on the ground of B., and hunts it into the ground of C, and 
kills it there, the property is in A., the hunter, but A. is liable to an 
action of trespass for hunting in the grounds as well of B. as of C 

" I have some difficulty in understanding why the wrong doer is to 
acquire a property in the game under the circumstances here supposed. 
If the animal had left the land of B. and passed into the land of C, 
of its own will, and had been immediately it crossed the boundary, 
killed by C, it would unquestionably have been his property. Why 
then should not the act of a trespasser to which C. was no party, have 
the same effect as to his right to the animal as if it had voluntarily 
quitted the neighbouring land? And why, not only should B. lose his 
right to the game, and C. acquire none, but the property, by this accident 
of the place where it happened to be killed, be transferred to the tres- 
passer? It would appear to me to be more in accordance with principle, 
to hold that if the trespasser deprived the owner of the land where the 
game started, of his right to claim the property by unlawfully killing 
it on the land of another to wliich he had driven it, he converted it into 
a subject of property for that other owner and not for himself. 

" But the first proposition stated by Lord Holt, with respect to game 
started and killed on the land of the same owner, is free from all 
difficulty, and is sufficient to dispose of the present question. The case 
of Sutton V. Moody has always been regarded as an authority upon 
this point, and as far as I can ascertain, has never been questioned. 

" It certainly would not be right to disturb a principle of law so long 
established, unless it could be clearly shown to be erroneous. And it 
appears to me not only to be well founded, but that very strange con- 
sequences would follow from adopting the view contended for by the 
appellant. If he is right in saying that the owner of the lands has no 
property in game unless it is killed by him or by his authority, it will 
necessarily follow that a poacher reducing the game into possession, 
and thereby, as possessor, though a wrong doer, having a right to it 
against all the world, there being no one entitled as owner to challenge 



Pkivate Peoperty Rights in Wild Animals 303 

his possession, might maijitain an action against the owner of the land 
for taking the game from him even upon the land itself where it was 
killed. It is much more reasonable to hold that the trespasser having 
no right at all to kill the game, he can give himself no property in it 
by his wrongful act ; and that as game killed or reduced into possession 
is the subject of property, and must belong to somebody, there can be 
no other owner of it, under these circumstances, but the person on 
whose ground it is taken or killed. 

" This view of the case will render the distinction suggested in the 
course of the argument between killing and carrying away the rabbits 
as parts of one and the same continuous act, and killing them and 
leaving them upon the land and coming back for them, wholly imma- 
terial. For the act of killing being at once that which made the rabbits 
the subject of property, and reduced them into possession, whether they 
were for an instant or for hours upon the land, they equally belonged 
to the owner of the land." 

All of the usual civil remedies appear to have been 
available against a trespasser. 

The common law seems to have held, however, that as 
to the animals taken in the state of nature larceny did 
not lie. 

25 Cyc, page 17. 

Ingham on Animals, 12-15. 

Reg. V. Townley, L. R. I. C. C. 315. 

Reg. V. Fetch, 14 Cox C. C. 17. 

State V. Repp, 104 Iowa, 305. 

Reg. V. Read, 28 Eng. Rep. (Moak, 12) 123. 

In the English case of Reg. v. Fetch decided in 1878, 
it was said : 

" The case is really governed by that of Reg. v. Townley where the 
law on the subject is fully, stated in the judgment of Blackburn, J. At 
common law to constitute larceny it was necessary that there should be 
a taking and carrying away of the chattel. And among the instances 
put in the old books are those of growing trees and lead fixed to a 
building which constitute part of the freehold where a severance was 
necessary to turn them into chattels and unless there was an interval 
between the one act of turning them into chattels and the other act 
of taking them away during which there was a change in the posses- 
sion from the person who severed them to that of the owner, the final 
act of carrying them away by the person who severed them did not 
form the subject matter of larceny. So in the present case although 



304 Game Law Guide 

property in wild animals as decided in Blades v. Higgs (11 H. of L. 
cases, 621), becomes that of the owner by being killed on his land but 
it does not follow that when a man without right goes upon the land 
and kills wild animals they become so reduced into the possession of 
the owner of the land as to render the man liable to a charge of larceny 
for can-ying them away. In Reg. v. Read, the principle was the same 
as that which governs this case. It is true that in that case the prisoner 
was employed to trap rabbits and had authority to kill rabbits and that 
availing himself of that authority, he trapped and killed rabbits, but 
that was not in fulfillment of his duty, but with the intention of taking 
the rabbits for his own purposes and not for his master. He reduced 
them into his own possession and not that of his master. In no sense 
did he reduce them into the possession of his master for he took them 
dii'ect from the trap to where the bag was concealed and put them into 
his bag. The only circumstance that appears to distinguish this case 
is the fact that the keeper Hewlett marked some of the rabbits, but 
that was done not with the intention of altering the possession of 
them, but for the purpose of identifying them. That fact does not 
make any difference in the case." 

The English or common law can then be summed up 
from the above authorities as follows : 

When game regardless of where it is started is killed 
on the land of A, or is there reduced to actual possession, 
it becomes at once his property. This is true it seems, 
whether A has killed the game himself or whether it has 
been killed by others, trespassers or otherwise. This is 
so whether the fact that the game is dead and lying upon 
his land is or is not within A's knowledge. Under such 
circumstances, the game is at once reduced into the pos- 
session of A and he may bring an action against any one 
who converts it. Under such circumstances any person 
who picks up and dishonestly appropriates the game is 
guilty of larceny except in cases where the killing and 
carrying away are one continuous act. 

The 1916 statute of the province of Ontario provides : 

"A person who commits an offense against this Act shall not have or 
acquire any right of property in game or fish caught or taken by him 
while committing such offense or in respect of which such offense was 
committed, but the same shall be forfeited and shall become the prop- 
erty of the owner, lessee or licensee, if any, in breach of whose rights 



Private Property Eights in Wild Animals 305 

the offense was committed; or if there is no such owner, lessee or 
licensee, shall become the property of His Majesty." 

The question of main importance is does the common 
law rule obtain in this State? 

It is said in Am. «& Eng. Encyc, vol. 14, page 658, that 
the English game laws are founded on the idea of 
restricting the right to take game to certain privileged 
classes generally land holders, though in 1831 the law 
was so modified as to allow any one to obtain a license 
to kill game provided he was no trespasser. 

In State v. House, 65 N. C. 315, it is intimated that the 
English system of game laws seems to have been estab- 
lished more for princely diversion than profit. 

In State v. Horton, 139 N. C. 588, it was held that game 
in the state of nature was not the property of the owner 
of the land to the extent that one accidentally committing 
a homicide while trespassing in pursuit of game should 
be held liable for manslaughter, particularly for the 
reason that no one could be said to be in possession of 
animals in a state of nature. 

In Cooley on Torts, page 510, there is the following statement : "As 
regards beasts of the chase the English rule is that if the hunter starts 
and captures a beast on the land of another, the property in it is in 
the owner of the land. Under the civil law the property passed to the 
captor and such is believed to be the recognized rule in America, even 
when the capture has been effected by means of trespass on another's 
land. 

These are the main comments in criticism of the 
English or common law ride and its application to Amer- 
can and New York State wild animals taken by a 
trespasser. 

The statements that an owner of land is not the owner 
of the fish and game found thereon, made in such cases as 
Matter of Deposit, 131 A. D. 403; People v. Doxtater, 
75 Hun, 472, and Rockefeller v. Lamora, 85 A. D. 254, 
are really limited to the situation as between the State 
and the owner and subject his rights to State regulation; 
20 



306 Game Law Guide 

for the issue in the Deposit and Doxtater cases was 
between the State and the owner of the land. In the 
Lamora case the statement '* No man owns wild game or 
fish even though they be on his land unless he has 
reduced them to his possession by capture. If they 
wander from his premises to those of the public or 
another he may not complain of their taking " does not 
necessarily conflict with the common law rule as set 
forth in Blades v. Higgs. 
As was held in Rockefeller v. Lamora : 

'' It is probable that section 18 of article 3 of the Constitution would 
prohibit the Legislature from granting to any individual or association 
the exclusive right of fishery in any of the navigable waters of the 
State, for such a grant would be in the nature of an exclusive privilege 
or franchise. And if the state had any title to the fish, birds and game 
on private lands, the Legislature could not give away that title to an 
individual or association seeking to park a particular territory. Doubt- 
less the Legislature had something of this in mind when by section 
277 of chapter 488 of the Laws of 1892 it repealed chapter 623 of the 
Laws of 1887, which provided that when any territory should be 
dedicated and designated as a private park all fish, birds and game 
should become the property of the owner or the person or corporation 
having the exclusive right to shoot, hunt or fish thereon. But such a 
grant was not a necessity, for the proprietors of the soil through which 
non-navigable streams flow have the exclusive right of fishing." 

To support his dictum Cooley cites three cases, Taber 
V. Jenny, 1 Sprague, 315, holding that a whale belongs to 
its captors; Matthews v. Treat, 75 Maine, 594, holding 
that there is no property in fish in tide water ; and State 
V. Roberts, 59 N. H. 484, which holds that there is no 
property in fish in a fresh water pond unless so enclosed 
as to be entirely within the control of the owner of the 
surrounding land. The first two cases involve tidal 
waters and the third seems to ignore the qualified right 
of the owner of the soil or the exclusive privilege in its 
assertion of the right of the State to regulate fishing 
upon private waters. 



Peivate Property Rights in Wild Animals 307 

It may be that the rule of the civil law and not that of 
the common law obtains in New York State, and the 
application of the civil law rule would clear up many 
tangles. Yet under the civil law rule the right of the 
owner to forbid trespass and hunting was recognized 
and the owner could stop the hunter before or after he 
had killed the animals and could put him off under any 
circumstances. 

But on apparently no other proposition is it claimed 
that the rules of the civil law obtain in this State; they 
do not hold as to the Rule of the Chase proper and they 
do not apply as to Navigable Waters except as to the 
Hudson and Mohawk. 

The common law rule has been applied as to navigable 
ivaters and the rule of the chase. 

The constitution of the State preserved the applicable 
common law and the English rule is not as repugnant to 
our conditions as is the common law rule on navigable 
waters. 

See art. 1, Const., sections 16-17. 

In fact with the posting law the conditions here are 
potentially exactly like those in England and every 
trespasser is a poacher. 

The English rule is recognized in Pierson v. Post, the 
leading New York case on property in wild animals. 

It is recognized and referred to without disapproval in 
Goff V. Kilts, 15 Wendell, 550. 

More than that the leading English case of Blades v. 
Higgs and the doctrine laid down by it are adopted by 
Cyc. and Am. & Eng. Encyc. and are cited and approved 
in the case of A^rooin v. Tilly, 99 A. D. 516 (1904), 
affirmed, 184 N. Y. 169 ; and while this is a case on oysters, 
no distinction seems to be made between such animals 
and those possessed of greater powers of locomotion. 

The Penal LaAv long ago abolished the technical com- 
mon law distinction between larceny and embezzlement 



308 Game Law Guide 

and did away with the doctrine of severance, possession 
and asportation referred to in the English cases. 

By Section 1291 of the Penal Law it is provided as to 
larceny : 

All the provisions of this article apply to eases where the thing 
taken is a fixture or part of the realty or any growing tree plant or 
produce and is severed at the time of the taking in the same manner 
as if the thing had been severed by another person at a previous time. 

The fact that game may not lawfully be sold would be 
no defense just as the fact that trees in the forest pre- 
serve could not be sold was held to be no defense. 

See People v. Gaylord, 139 A. D. 814. 

It is well established that of oj^sters not only conver- 
sion but also larceny may be committed. 

Fleet v. Hegeman, 14 Wendell 42. 
Vroom v. Tilly, 184 N. Y. 168. 
People v. Morrison, 194 N. Y. 175. 

The common law rule ivill prevail unless abolished by 
valid statute or repudiated by the courts. 

The exclusive right to hunt and fish on land, upon 
which the English law is built as set forth in Blades v. 
Higgs and other cases, is consistently recognized in the 
Conservation Law and the authorities. The hunting 
license law (Section 185, subdivision 8), recognizes it and 
at present makes qualified concessions in its favor. It is 
recognized in Section 50 and Sections 360-366, which 
govern private park sand posted lands and the obliga- 
tion of the State in the matter of purchase of the exclu- 
sive rights. 

It cannot be claimed that the provisions as to posted 
lands are in compensation for these rights impliedly 
abolished by the law. This qualified property right in 
game is the equivalent of this same exclusive right to 
take by fishing and hunting. 

See Rockefeller v. Lamora, 85 A. D. 254. 



Private Peoperty Rights in Wild Animals 309 

There is perhaps no greater part of the scheme of fish 
and. game propagation and protection than that carried 
out by the recognition in the law as to private parks and 
posted lands of these exclusive rights and the enforce- 
ment of them through the creation of criminal and civil 
exemplary liability for the trespass in addition to other 
existing remedies. 

Section 382 declares the law to be a restatement of 
existing law with such changes as clearly appear and 
Section 175 has never yet been held to have abrogated 
the common law rule. 

For these reasons it would seem that though the courts 
if called upon to decide the question might repudiate the 
common law rule just as it might the rule as to fishing 
and hunting rights on nontidal navigable waters, never- 
theless the iveigM of autJiority is in favor of the rule as 
consistent with our conditions. 

It would appear wise therefore until this question is 
settled to adopt the principles of the common laiv in 
favor of the OAViiers of the land or the exclusive rights 
and secure their waiver and consent as provided for in 
the Conservation Law. 

This property right {ratione soli) primarily is with 
the land but absolute title to the land is not necessar^^ to 
support the claim. It obtains in favor of the one holding 
the exclusive right to fish, hunt or trap upon the land. 

State V. Malloiy, 67 L. E. A. 773. 
Payne v. Sheets, 75 Vt. 335. 
SejTuour v. Courtney, 5 Burr, 814. 
Fitzgerald v. Firbank, 2 Ch. 96. 

Occupation of a spot for five or six consecutive weeks 
annually as a fishing place is not sufficient to establish 
a prescriptive right of exclusive fishing; either as 
against an individual proprietor or the public. 

Jackson v. Lewis, Cheves (S. C.) 259. 

The exclusive rights being an interest in the lands in 
the nature of a profit a prendre are within the statute of 



310 Game Law Guide 

frauds and subject to the requirements of that statute as 
to written instruments are assignable and the subject of 
lease or sale^ 

Bingham v. Salene, 15 Oregon, 208. 
Wickham v. Hawker, 7 M. & W. 63. 
Graham v. Ewart, 11 Exchequer Reports, 326. 
Am. & Eng. Encyc, vol. XXIII, page 185. 
Wood on Statute of Frauds, section 3. 
Am. & Eng. Encyc, vol. X, page 401. 
State V. Mallory, 67 L. R. A. 773. 

Article 1, Section 13, of the State Constitution, pro- 
hibiting leases for a term longer than twelve years 
applies only to leases of agricultural lands for agricul- 
tural purposes. 

A lease of an island includes the game. 

Garcia v. Gunn, 119 Cal. 315. 

The rights in and to waters may be granted separate 
from the bed and the bed may be reserved from the grant. 

Taggart v. Jaffrey, 28 L. R. A. 1050. 
Jackson v. Halstead, 5 Cowen, 216. 

The socalled owner of water in a stream or pond not 
navigable or of all the rights and privileges therein has 
the exclusive right of fishing in the same although the 
land lying under the water belongs to another. 
Lee v. Mallard, 116 Ga. 18. 

The right of fishing in private waters is a profit a 
prendre and a person who enjoys the right may bring an 
action of trespass at common law for its infringement. 

Fitzgerald v. Firbank, 2 Ch. 96. 

This profit a prendre passes with the land or water 
unless reserved. Exclusive rights of fishing and hunting 
on another's land or waters may also be acquired by 
prescription but being a profit in lands as distinguished 



Pkivate Property Rights in Wild Animals 311 

from an easement, it cannot be claimed by custom but 
must be acquired by prescriptive use as belonging to 
some estate and not by a person as merely one of the 
public. I ■ ... „ 

19 Cyc. 990. 

Tusearora Club v. Brown, 154 A. D. 366. 

If tlie land is o^\Tied by more than one person, the 
rights of all the oivners should be leased or sold for the 
profit a prendre being in the nature of, but stronger than 
an easement in gross cannot, it seems, be granted by one 
tenant in common without the consent of the others. 

Crippen v. Morse, 49 N. Y. 63. 

City Club of Auburn v. McGheer, 198 N. Y. 160. 

Palmer v. Palmer, 150 N, Y. 139. 

Girard on Titles to Real Estate, 762. 

Am. & Eng. Encyc, vol. XXIII, page 188. 

Compare section 360. 

One working a farm on shares instead of being techni- 
cally a tenant may be but a cropper vested with but a 
sub-possession and in the absence of an express grant to 
him of these exclusive rights cannot assert them. 

Am. & Eng. Encyc, vol. VIII, pages 318-324. 

In the case of a tenant these exclusive rights may be 
reserved from the operation of the lease and remain in 
the owner of the land. 

On the highway the title being generally in the owner 
of the abutting lands subject to the public easement, the 
same principles apply to hunting and fishing within the 
four rod strip, as hunting and fishing rights are not such 
servitudes as go with the public easement. 

Girard on Titles to Real Estate, 841. 
Realty Co. v. Johnson, 92 Minn 363. 
19 Cyc. 989. 

Compare Rockefeller v. Lamora, 106 A. D. 345. 
See section 222 as to bunting on highways except those in 
the forest preserve. 



312 Game Law Guide 

The owners of these exclusive rights whether by virtue 
of title to the land, unrestricted possession by lease or 
grant or otherwise may of course waive them in favor of 
any persons whom they desire to allow to hunt or fish. 
This waiver or consent until revoked would vest in such 
person the title to such fish and game as he might take. 
Such person however unless he is vested with greater 
authority or rights has it seems no rights which will pre- 
vail against a trespasser. 

See Ferguson v. Miller, 1 Cowen, 243. 

iBut under the common laiv rule a person acting on 
behalf of the owner of the land could deprive the tres- 
passer of the game and restore it to the land owner. If 
he acted in had faith he, as well as the trespasser, might 
possibly be held for larceny for it is larceny to take prop- 
erty from a thief with intent to deprive the true owner 
thereof. 

See People v. Livingstone, 47 A. D. 283. 

As between two persons, both of whom are on the land 
with the consent of the owner or owners, the rule of the 
chase would apply. 

Assuming that the common law rule as to the qualified 
property rights in and to game on the land being vested 
in the owner of the land, holds, in this State, there must 
be some adjustment between that rule and the ride of the 
chase. 

Has the person who by so wounding or ensnaring the 
animal as to deprive it of natural liberty, the right to 
continue his pursuit of the animal upon another's land? 

Under the common law rule if the person in question 
has acquired what would otherwise be the constructive 
possession of the animal while a trespasser on the lands, 
his constructive possession would appear to be void and 
of no avail. 

On the contrary where the person in question acquired 
the constructive possession of the animal on his own 



Private Property Rights in Wild Animals 313 

lands or lands upon which he had a legal right to be it 
would seem that he should have a right to folloiv the ani- 
mal and take it upon another's land without violating the 
provisions as to trespass. 

See Goff v. Kilts, 15 Wendell, 550. 

For instance if a person standing upon lands where he 
has a right to be, fishes in the stream over the fence upon 
lands of another where he has no right to be, he is a 
trespasser. 

But if while standing on the lands of the consenting 
owner, he hooks a fish and the fish carries his line up 
stream under the fence or takes pole and all, or if the fish 
in being '' snailed out " leaves the hook and falls on the 
other person's land, it seems that he should have a right 
to follow up and rescue his property without violating 
Part XI. 

See Gofe v. Kilts, 15 Wendell, 550. 

If a person under the same circmnstances shoots a 
bird or quadruped and wounds it but it escapes to the 
adjoining lands it would likewise seem that he should be 
entitled to follow and take it without violating Part XI. 

In the English case of Kenyon v. Hart, 11 L. T. N. S., 
733, it was held that where A upon his own land shot at 
a pheasant which rose from his land, but the act of shoot- 
ing took place while the pheasant was in the air over B 's 
land, the act of A in going on B's land and picking up the 
bird was not a trespass in pursuit of game. 

But where a pheasant was on the ground of an adjoin- 
ing owner and A shot it and went over to pick up the bird 
it was held to be a trespass in pursuit of game. 

Osborn v. Meadows, 6 L. T. N. S. 290. 

Firing at game from a highway has been held to be a 
trespass in pursuit of game. 

Mayhew v. Wardley, 14 C. B. N. S. 550. 
See Ingham on Animals, 574. 



314 Game Law Guide 

The same principles would apply along the boundaries 
of closes, refuges and territories covered by additional 
protective orders and the sending of a dog into the closed 
territory by one standing outside would constitute a 
violation of the law. 

Most of the puzzling, technical situations which may 
arise under the common laiv rule as to the rights of the 
owner of the land would be dispensed with if it were 
definitely held that the civil law rule applied in New York 
State and that the trespasser acquired title to the game 
at the risk only of the violation of Part XI. 
See the discussion in the next chapter. 



CHAPTER XIX 



PRIVATE PARKS AND POSTED LANDS. 

At the outset in considering questions as to parks and 
posted lands provided for in Part XI of the Conservation 
Law the restrictions of the statute as to dams on the 
inland waters of the State are all important. 

Section 290 provides : 

Before the construction of a dam is commenced on any of the 
inland waters of the state, the plan thereof, and a statement of 
the name, length and location of the waters on which the same is 
to be built shall be given to the commission by the person, or if 
by public authority, by the official directing or permitting the 
work. 

Compare sections 22, 246. 

Section 291 provides : 

The commission may on notice to the owner of the land or the 
official directing or permitting the work, make an order to be 
entered in its minutes and to be served by copy on such person 
or official directing the construction of fishways in any dam hereto- 
fore or hereafter built, or if there be fishways, the making of 
changes therein in accordance with specifications to be embodied in 
said order and it shall be the duty of the person or official so served 
to comply with such order within the time to be specified in said 
order, and every person or officer who fails or refuses to comply 
with or violates such order shall be guilty of a misdemeanor and 
be liable to a penalty of five dollars for every day such violation, 
failure or refusal continues. 

Compare sections 32, 182. 

By Section 161 of Chapter 24 of the Laws of 1909, the 
effect of a somewhat similar provision was limited to 
dams in streams more than six miles in length inhabited 

[315] 



316 Game Law Guide 

by fish protected by law. The statute now applies to all 
streams or bodies of water no matter what their size or 
length. 

The philosophy of these provisions and the authority 
of the Commission to enforce them are fully set forth in : 

Matter of Fishway, 131 A. D. 403. 
Compare State v. Haskell, 23 L. R. A. 227. 
See Hall v. Conklin, 138 A. D. 450. 
See Cookinham v. State, 171 A. D. 80. 

There is no prescriptive right based upon long con- 
tinued use to maintain a dam or an obstruction to the 
passage of fish. 

19 Cyc. 992. 

Matter of Deposit, 131 A. D. 403. 

Subject to such restrictions a landowner may convert 
the old channel of a stream into fish ponds, hatcheries, 
etc., and cut a new channel for the water, if he returns it 
to the old channel before it leaves his lands. 

State V. Parker, 27 L. R. A. 1138. 

Speaking of the public right and the rights of upper 
and lower riparian owners to have fish pass up and down 
the stream, the court in Matter of Deposit said : 

*' While private interests should not be allowed to infringe upon public 
rights, public rights should not be allowed to unnecessarily abridge 
vested private interests." 

See article 6 of the Navigation Law. 
Section 1423 of the Penal Law provides : 

"A person who wilfully or maliciously displaces, removes, injures or 
destroys a dam lawfully erected or maintained upon any water within 
the state or hoists any gate in or about such dam is punishable by 
imprisonment for not more than two years." 

The above provisions are of immediate concern in cases 
where dams in the aid of fowling and fishing are contem- 
plated. 



Private Parks and Posted Lands 317 

Probably the most romantic case on the question of 
trespass in pursuit of game is the English case of Baker 
V. Berkeley, 3 C. & P. 32, where the hunted stag took 
refuge in the barn and the owner refused to allow the 
hunting party to come upon his premises to effect the 
kill. This case which has been the subject of picture and 
story arose apart from any such aids for the enforce- 
ment of one's rights against trespassers as the posting 
law. 

As indicated in the preceding chapter only those per- 
sons oivning the exclusive hunting and fishing rights 
upon lands can effectively post them under Part XI. 

At the threshold of this subject there must be fixed in 
mind the fact that two distinctly different situations are 
contemplated by the law : 

First: The establishment of private parks, accom- 
plished by the setting apart of lands and waters devoted 
to the bona fide propagation and protection of fish and 
game as provided in Sections 360-361. 

Second: The protection of the exclusive hunting and 
fishing rights on enclosed or cultivated lands as provided 
in Section 362. 

The portion of the law devoted to these propositions 
has been repeatedly amended to meet different condi- 
tions and the objections raised and pointed out in liti- 
gated cases. 

Legislation along this line apparently dates back to 
Chapter 384 of the Laws of 1860. 

The first important reported case involving trespasses 
in pursuit of fish and game was that of Hill v. Bishop, 
17 N. Y. Supp. 297, construing the law of 1887. It w^as 
there held that only those who had the entire and exclu- 
sive control of a pond could legally post it against 
trespass. 

The law of 1892 did not make a trespass a criminal 
offense and that feature was added by Chapter 573 of the 



318 Game Law Guide 

Laws of 1893, Section 217. The law of 1892 contained no 
proviso as to waters stocked with State fish. It was not 
until the enactment of Chapter 319 of the Laws of 1896 
which took effect April 17, 1896, that any such proviso 
was made. 

The law as it stood down to and including 1893 was 
construed and interpreted in People v. Hall, 8 A. D. 15, 
decided in 1896, and that case seems to have settled the 
law down to the enactment of chapter 319 of the Laws 
of 1896. 

That case involved the shooting of water fowl on 
" Black Lake " in Seneca county and was a criminal 
prosecution. 

The following are quotations from the opinion in the 
case: 

" The defendant was convicted of the crime of shooting wild ducks 
upon certain lands and water claimed to have been devoted to, and used 
as, a private park, for the purpose of propagating and protecting 
fish, birds and game, without 'the consent of the owner or person 
having the exclusive right to shoot, hunt or fish thereon,' 

'' The prosecution and conviction seem to have been based exclusively 
upon sections 212 to 215 and 217 of chapter 488, Laws of 1892, as 
amended by chapter 573, Laws of 1893. It is so stated in the respond- 
ent's brief, and so it would appear from the printed ease; and it is 
not contended that the appellant was guilty of violating sections 210 and 
211, relating to trespassing upon ' inclosed or cultivated land for the 
purpose of shooting or hunting any game.' The affidavit of Edward 
Lay, upon which the warrant was issued, stated that the lands were 
'partially inclosed,' and he testified that his lands consisted of 106 
acres of marsh, swamp and water and 85 acres of upland ; * we pasture 
the marsh land in the summer time, and we have inclosed the marsh 
and water for hunting purposes; the marsh part is fenced down to 
the water.' Hiram Lay testified that the lands were fenced on the 
north, south and west, but not on the east; that the fence was for 
keeping cattle off the hard land, and was there before the passage of 
this statute. The contention upon this appeal is that the lands were 
regularly devoted and used as a private joark for the purpose of propa- 
gating and protecting fish, birds and game; but this is controverted by 
the appellant, and is the main question to be considered and deter- 
mined. Is the respondent's contention supported by adequate proof 
of user for the purposes of propagating and protecting birds and game? 



Private Paeks and Posted Lands 319 

" The ' private park or territory ' claimed by the complainants con- 
sists of about 250 acres, about 106 or 125 acres being of marsh, swamp 
or water, the body of water being designated as Black lake or pond, 
and connected by an outlet with Seneca river. At times the low lands 
would be covered by overflow of water from Seneca river, and at other 
times the water would be so low that the pond would be greatly reduced 
from its normal size, by reason of low water. Evidence was given 
tending to show title in the prosecutors of the land surrounding and 
under the said pond, except a part of a small cove on the extreme 
southern edge of the pond, which was said to contain one-half or three- 
quarters of an acre of land. 

" Edward Lay testified that, before he put up the signboards, every 
body hunted and fished upon that lake or pond, and had done so as 
long as he could remember without hindrance from him, and that there 
are about fifty acres of marsh land between the hard land and the 
pond; that in time of high water the marsh and swamp lands are cov- 
ered with water, also the lands belonging to Carey, Hammond and 
Charles Lay; that 'the identity of the lake is lost in time of high 
water; I don't know just where the lines are; I do not know the exact 
location of the north line of lot No. 63; the lake and marsh is all one 
body of water in time of high water; the waters in the lake rise as the 
water in the river rises; the lake connects with an inlet and outlet; the 
water rises in the river first and sets back in the lake; there are 
springs in the lake; in low water runs from the lake to the river.' 

"A witness (Carey) called by the defendant testified that he owned 
lands north of the complainants; that a 'shank' of the lake runs up 
into his land at time of medium water fifty or sixty rods ; that he shot 
and fished on the waters covering his land in the spring of the year 
to the knowledge of the complainants; that he had known fifty acres 
of his land to be covered with water four feet deep in the spring of 
the year; that there are times when the lake is fed by the waters from 
the river and times when it is not; that a south wind raises the water 
in the lake and marshes; that the inlet is not a very large body of 
water and is not fed by the spring ; that this ' shank ' is a low piece of 
land and in low places the water cannot get out, and the low places 
are sometimes connected with the lake and sometimes not. 

" Hall testified that the lake is fed from the river in high water, but 
at times it gets so dry that there is but little water in it. 

" This is about all the material evidence that is necessary to be pre- 
sented in the determination of the matters on controversy. 

" The defendant was shooting on a small island in about the center 
of the bay. 

" Respondent says that the complainants do not claim the exclusive 
right to the whole of Black lake, but only to exclude people from the 



320 Game Law Guide 

lands described by them in their published notice, and no more; that 
they make no claim to hunt or fish in the cove referred to, situated at 
the extreme southerly point of the lake; that it is no part of the lake 
proper. 

" It is not disputed but that the complainants fully complied with 
the statutory requirements as to publication in the newspaper, and also 
placed signboards warning trespassers. 

" The purjjose of this statute is to make it a criminal offense, and 
thereupon an offense against the people at large, for one to enter upon 
the lands of another, who has complied with the conditions prescribed, 
for the purpose of shooting wild birds or animals, or of fishing in the 
pond, lake or streams thereon. Evidently the provisions referred to 
are of a highly penal character, and by all canons of construction they 
must be strictly construed and not be extended by implication. The 
leading rule of construction of statutes is, of course, to ascertain 
fairly the intention of the Legislature ; but in statutes giving a penalty, 
if there be a reasonable doubt of the ease made upon the trial or in 
the pleadings, coming within the statute, the party of whom the penalty 
is claimed is to have the benefit of such doubt. 

"A preliminary question arises, as to whether the signboards placed 
upon the private park or territory should contain a notification of the 
fact that the lands, or lands and water, are devoted to the purpose of 
propagating and protecting fish, birds and game, or whether a simple 
notice wanamg all persons from trespassing upon the lands or water is 
a sufficient compliance with the statute. It will be observed that the 
notice required to be published in the newspaper (of which one publi- 
cation is sufficient) must expressly declare that such lands, or lands 
and water, will be used as a private park for the purpose of propa- 
gating and protecting fish, birds, etc. In addition to that, the statute 
requires the placing of notices or signboards ' warning all persons 
against trespassing thereon ; ' that is to say, upon such park or territory. 

" It would seem to be a fair and reasonable interpretation of the 
statute that the signboards should give notice that it is a private park, 
as well as warn all persons against trespassing thereon. If the lands 
are ' inclosed or cultivated,' and signboards are posted warning against 
trespassing, that is sufficient to make the trespasser a criminal by virtue 
of sections 210, 211 of the statute. But if they are not so inclosed or 
cultivated, the notice should substantially state that it is a private park, 
etc., for the propagation of fish, etc., or, in other equivalent words, the 
' warning ' must be that it is a private park, etc., and that trespassing 
is forbidden. 

"Another matter for determination is whether such lands, or lands 
and water, were actually ' used as a private park for the purpose of 



Private Parks and Posted Lands 321 

propagating and protecting fish, birds and game/ as required by the 
statute. 

" The evidence is insufficient to show that the lands or waters were 
used or devoted for any such purpose, within the true intent and 
meaning of the statute. The notice published in the newspaper is 
dated October 13, 1893. The witness Edward Lay, who is one of the 
prosecutors, testified that ' we put a rack in the pond after putting in 
carp, and it was taken down, and I could never find out who took it 
down.' Also, that * we have inclosed the marsh and water for hunting 
purposes.' Hiram Lay testified that the rack was put in the channel 
about five years ago, before the notices were published. On cross- 
examination he said that ' the lake has been stocked with carp.' ' I 
have sold leases to parties to hunt on this land. There is a party that 
has leased the land and has the privilege to shoot and hunt there for 
three years. We have let it to about ten persons and ourselves. We 
only reserved the right to shoot in the lake, so that if we wished we 
could take a party in there to shoot. We, or they, could permit any 
reasonable number to go in there and shoot. The company made their 
own rules as to whom they should permit to go hunt in the lake.' 

" It is to be inferred from this that the owners leased their lands to 
a hunting or hunting and fishing club, and thus devoted their lands 
for the purpose of hunting and fishing. This is hardly consistent with 
the idea of propagating and protecting wild birds or game. Indeed, 
there is no evidence of any act done for the purpose of such propa- 
gation and protection. And the only evidence of any act done towards 
propagating fish is that the lake or pond was stocked with carp about 
five years ago, but no quantity specified. This will not do; that is not 
a sufficient compliance with the requirements of the statute, and the 
owners or lessees are not entitled to its protection against interference 
with their hunting and fishing. 

Citing Benscoter v. Long, 157 Penn. St. 209. 

" It is true that the defendant here is not charged with fishing in a 
private pond or lake devoted and used for the propagation and protec- 
tion of fish; still the decision quoted is not without application to the 
ease brought up for review. The principle of that adjudication is, that 
where a statute requires that the lands, or lands and water, shall be 
used for a specified purpose, whether for the propagation and protec- 
tion of fish or of wild birds or game, the evidence of user for propa- 
gating purposes must be ample and sufficient to warrant a conviction. 
Here there is but very slight evidence tending to show that the lake 
or pond was used or intended to be used for propagating fish, whilst 
there is no evidence whatever of any act done for the propagation of 
wild birds or game, or for their protection and preservation. The pub- 

21 



322 Game Law Guide 

lie declaration and notice of the owners that they devoted the lands 
and waters for both these purposes is false as to both. 

"Appellant also contends that even though the proprietors of this 
pond had actually devoted and used the waters for the primary pur- 
pose of propagating and protecting fish, they could not claim protec- 
tion for it as a private pond under the provisions of the statute; that 
to bring the case within the statute, the whole of the pond must be so 
far private property as to confine therein the fish with which it is 
stocked; that the ownership of a part only of the land covered by the 
water is not suflfieient to give to the whole water the distinctive char- 
acter of private ; that the question is not whether the complainants have 
rights whicli may be trespassed upon, but is the whole body of water 
private within the meaning of the statute. It is argued that the com- 
plainants must show exclusive right to fish in these waters, and this 
they did not have, because it appears that in time of high water there 
are several persons owning land in the vicinity who have the right to 
fish therein. Then again, a portion of the waters of this pond enter 
into the cove owned by one Hammond. That the nature of this body 
of water is such that the idea of propagating and protecting fish is 
entirely out of the question, because at time of high water the identity 
of the lake is lost and it becomes a part of the river." 

It is to be first noted that the statute was held to be 
highly penal and to be strictly construed. 

See Eoekefeller v. Lamora, 85 A. D. '257. 
See Stahl v. Roof, 164 N. Y. 162. 

The evidence in the Hall case as to stocking was offered 
as bearing upon the proposition of propagation to prove 
the establishment of a private park. The statute then 
read propagation or protection. 

In the Attorney-General's Report of 1895 at page 161, 
it was held that a stocking with the consent of the owner 
did not change the character of the waters; if private 
they remained so. 

By chapter 319 of the Laws of 1896, the original proviso 
as to stocking was added : 

" Provided however that all waters heretofore stocked by the state 
or which may hereafter be stocked by the state from any of the fish 
hatcheries, hatching stations or by fish furnished at the expense of the 
states shall be and remain open to the public to fish therein the same as 



Private Parks and Posted Lands 323 

though the private park law had never existed. But nothing herein 
contained shall be construed as affecting any rights now existing of 
persons owning lands or holding leases of private grounds, waters or 
parks prior to the passage of the act." 

The law as changed by this amendment was construed 
in Rockefeller v. Lamora, 85 A. D. 254, decided in 1903. 
This stubbornly contested case was tried three times, 
was three times before the Appellate Division and finally 
on a point of practice only went to the Court of Appeals. 
See 96 A. D. 91, 106 A. D. 345, 186 N. Y. 567. 

The following quotations are taken from the opinion 
in 85 A. D. 254: 

" The plaintiff' is the owner of about 50,000 acres of Adirondack 
forest lands, being the greater portion of townships 16 and 17 in 
great tract No. 1 of Macomb's purchase in the southern part of Frank- 
lin county. 

" The St. Regis river, which flows northwesterly into the St. Law- 
rence, has its source, in three branches, in this vicinity. What is termed 
the Middle branch rises in the St. Regis lakes, situate in township 18, 
which joins township 17 on the east, and flows for several miles through 
the plaintiff's lands. On the easterly side of township 17 is a consid- 
erable body of water known as Fallensby Junior pond. Its inlet is 
from Slush pond situate in the westerly borders of township 18, and 
its outlet empties into the Middle branch of the St. Regis river on 
plaintiff's land. In the southwest part of the township is a pond 
known as Bay pond, the outlet of which flows into the West branch 
of the St. Regis river, which does not join the Middle branch for many 
miles after leaving -the teri'itory owned by the plaintiff. In the north- 
east part is located Quebec pond, the outlet being Quebec brook, which 
flows northerly off the lands of plaintiff, and eventually joins the 
Middle branch a considerable distance beyond the borders of his tract. 
A small tributary known as MeCollom's brook, rising on another town- 
ship, emi^ties into Quebec brook just south of the north line of town- 
ship 17. 

" The plaintiff completed the acquisition of his lands in the spring 
of 1899, and immediately began the establislmient of them as a private 
park for the protection or propagation of fish, birds and game, by the 
pv^blishing and posting of the notices provided by article 9 of the 
Fisheries, Game and Forest Law (Laws of 1892, chap. 488, as amd. 



324 Game Law Guide 

by Laws of 1895, chaps. 395 and 974, and Laws of 1896, chap. 319). 
Since that time, the entii*e tract, except about twenty-five acres cleared 
for a camp near Bay pond, has been devoted to the uses of a fish and 
game preserve. The plaintiff engaged, and has kept employed, men to 
look after his lands and to preserve them from trespass. English deer 
were imported and turned loose amongst the native deer, both of which 
have been fed during the winter when occasion required. Fish, birds 
and deer have largely increased since the establishment of the park. 

" In April and May, 1902, the defendant, on three several occasions, 
entered upon the plaintiff's lands and fished in the Middle branch of 
the St. Regis river. He knew of the published and posted notices, and, 
in addition, had been warned by the plaintiff's keepers not to fish upon 
the plaintiff's lands, because it was a private park. He caught and 
carried away a number of trout on each occasion. 

" The plaintiff thereupon brought action in Justice's Court against 
him to recover the penalty, in the form of exemplary damages, pre- 
scribed in section 203 of the Forest, Fish and Game Law. The 
defendant justified his trespass on the ground that the waters on and 
running through the plaintiff's lands and pretended park had been 
stocked with fish by the State, and that, hence, the plaintiff had no 
right of action for the penalty in the form of exemplary damages 
against a citizen fishing in such waters. 

" That action resulted in a judgment for the defendant, and the 
plaintiff appealed to the County Court of Franklin county for a new 
trial, which resulted in a direction of a verdict for the defendant at 
the close of the evidence, and it is from that judgment that the plain- 
tiff appeals. On that trial the plaintiff established the facts herein- 
before stated, and the defendant sought to prove the stocking of the 
waters by the State in justification of his acts. 

'* Errors were committed on the trial in the admission of unproved 
documents and letters, but this court puts its decision on broader 
grounds. The vast sums of money expended by individuals and clubs 
in establishing and preserving private parks in the Adirondacks, and 
the great interest which the citizens of the State have in their rights 
to the pursuit of pleasure and health in that region, demand from the 
court a hroad interpretation of the law. 

" For the purposes of the discussion of the case it will be assumed 
that the defendant proved that the witness Dwight, between the years 
1891 and 1894, not being the owner of the lands or having any fishing 
rights in the streams, and without the consent of the owners, stocked 
the inlet of Fallensby Junior pond with speckled trout fry procured by 
him from the State hatchery and hatched at the State's expense; and 
that he also stocked, in the same manner, with lake trout and speckled 
trout fry, the inlet 6£ Bay pond, and that such fish were furnished by 



Private Parks and Posted Lands 325 

the State Fish and Game Commission, on his request, they knowing 
where they were to be placed. Also that the witness McNeil stocked, 
before 1899, McCoUom's brook with speckled trout fry, under the same 
circumstances and under the same conditions. 

" This state of facts did not, we think, justify the defendant in his 
trespass, nor authorize the court to direct a verdict in his favor. 

"As early as the case of Hooker v. Cumming-s, it was held that in 
all rivers of the State not navigable in the sense that tide ebbs and 
flows (except the Hudson and Mohawk rivers, to which a different rule 
has been applied by reason of the terms of the grants), the proprietors 
of the soil through which a stream flows have the exclusive right of 
fishing therein, applying the rules of the common law of England to 
their full extent in that regard. This case has been often cited with 
approval, and has become one of the leading cases illustrating the rights 
of riparian owners. 

"In Chenango Bridge Co. v. Paige (83 N. Y. 178) the doctrine is 
reiterated that the bed and banks of a fresh water river where the tide 
does not ebb and flow are the property of the riparian proprietor, who 
may use the land or water of the river in any way not inconsistent 
with the easements of the public for passage as on a public highway. 

"In Smith v. City of Rochester (92 N. Y. 485) it is said that the 
Legislature has no more power over fresh water streams of this 
character than over other private property, except for the purpose of 
regulating, preserving and protecting the public easements. 

" In the present case there is no claim that the Middle branch of the 
St. Regis river is navigable for any purpose or in any sense. The 
plaintiff is the owner of the soil on both sides of the stream, and of 
its bed, as well as of the various ponds and streams which are claimed 
to have been stocked with fish from the State hatcheries. 

"•Further citation of authority and illustration that wjhen the 
plaintiff became the purchaser of the land and the beds of the streams 
and ponds, he prima facie had the exclusive right of fishery therein, 
is futile and unnecessary'. 

" What, then, was the intent of the Legislature in enacting the park- 
ing law*? Clearly, we think, only to give one complying with its terms 
protection to his private rights and the right to recover a penalty in 
the form of exemplary damages in addition to the actual damage sus- 
tained by trespass. 

" The act did not purport to give the owners of the lands and 
streams the right to fish and hunt on their own premises. They had 
that already, and they had the common-law action for trespass against 
any intruder. It is not questioned by what the Legislature could give 
the right to increased damages for the doing of certain acts, if it saw 



326 Game Law Guide 

fit. The provision for treble damages for cutting and despoiling trees 
upon the lands of another, and for forcible entry and detainer, was 
a part of the Revised Statutes before the enactment of the Code, and 
the power of the Legislature in that regard has never been doubted. 

" It may be said, too, that the Legislature had in mind some public 
benefit to be derived from the establishment and preservation of pri- 
vate parks. The law was passed at the beginning of the agitation 
for a forest preserve, the primary object of which was to protect the 
wild lands of the State from devastation and thereby preserve the 
waterways of the State. Game preserves could be established only in 
mountainous regions, and the protection of timber is a necessity to 
their continuance. 

" There was saved to the State, to remain open to the public, waters 
heretofore stocked by the State or by fish furnished at the expense of 
the State, or which might thereafter be stocked and it is under this 
provision that the defendant attempts to justify the trespass. But 
how stocked? The Legislature could not authorize the State Fish 
Commissioners to enter upon a man's private fishery, without his knowl- 
edge and consent, and deposit therein fish hatched by the State, and 
thus convert his property to public use and destroy his private rights. 
This would be the taking of private property for public use without 
just compensation. One might own a tract of thousands of acres, 
practically valueless as timber land or for agricultural purposes, and 
yet of very great value for the establishment of a private park. The 
defendant contends that the Legislature intended to provide that the 
act of a stranger, in conjunction with the determination to stock of 
the Fish and Game Commission, in depositing a few fish hatched at 
the State's expense in one of the streams on lands of an individual 
or corporation, should have the effect of dedicating to the public an 
entire territory, the waters stocked as well as all other waters on the 
lands, and that the owner and his grantees would be thereafter debarred 
from converting it into a valuable private park. This would be a 
more complete destruction of riparian rights than the declaring of a 
stream a public highway for the floating of logs, without adequate 
compensation, which the courts have uniformly condemned. The owner 
of a stream could doubtless dedicate it to the public use, as he could 
his lands to a public highway, but this imports consent on his part and 
a bargain entered into between him and the public authorities. 

" Nor do we think that if one pond or stream on a tract of land 
should be so dedicated to the public by the owner consenting that it be 
stocked by the State, that the owner would thereby dedicate to the 
public all the other separate streams and ponds which might be on all 
the land that he, owned. It is true that fish, at certain seasons of the 
year, pass from one portion of the stream to another. Trout fry placed 



Private Parks and Posted Lands 327 

in a small tributary, as they obtain greater size work to the main 
stream, and so up that stream, and may never go back to the original 
water in which they were placed. But this does not constitute a 
stocking of the main stream. The language of the statute is, ' all 
waters heretofore stocked.' In common parlance the use of the term 
' waters,' as applied to various lakes, streams and ponds on a tract of 
land, imports a designation of them in severalty, and in such sense we 
think the term is used in the statute. Our interpretation of the statute 
is that the stocking of streams and waters, the beds and adjacent lands 
of which are owned by an individual or corporation, in order to give 
the right to the public to fish therein, must be with the consent of the 
owner or one having a right of fishery therein, and that only the 
particular stream, lake or pond thus stocked is so made public, and 
that such stocking does not open to the public streams to which they 
may be tributary, and that this stocking of such a stream by the State 
and the owners above or below, does not have the effect of opening 
to the public that part of the stream situated on lands of an owner 
who has not consented to sv;ch dedication, and that the public is not 
permitted to follow the migrations of the fish and take them in that 
part of the stream on private lands without the owner's consent. 

*' It is urged that the various laws enacted by the Legislature, with 
respect to the time and manner of taking various kinds of fish and 
game, are inconsistent with this interjoretation of the law. 

" There is nothing inconsistent between this public regulation and 
the rights of individual owners. The power resides in the several 
States to regulate and control the right of fishing in the public waters 
within their respective jurisdictions. Fish and game are migratoiy, 
and those which may now be on private lands may quickly change their 
location to public lands and public waters. No man owns wild game or 
fish, even though they be on his land, unless he has reduced them to 
his possession by capture. If they wander from his premises to those 
of the public or another, he may not complain of their taking. In 
public waters and on public lands, this right is open to all alike, and 
no individual right is trespassed upon by so doing. 

"We have not overlooked the ease of People v. Hall (8 App. Div. 
15), urged upon our consideration by the defendant's counsel. There 
were many reasons in that case which called for a reversal of the judg- 
ment convicting the defendant of a misdemeanor provided by the Game 
Law, and the determination of the court could have well been put on 
those grounds alone. We are forced to disagi'ee with that portion of 
the opinion which intimates that a private pai'k cannot be maintained 
under the statute, unless proof is given that animals and fish were 
actually bred and propagated thereon. The language of the statute is, 
' devote such lands or lands and water, to the propagation or protection 



328 GrAME Law Guide 

of fish, birds or game.' It is well known that when fish and game are 
protected they propagate rapidly. In the present case the proof is 
that both have veiy largely increased since the establishment of the 
park. A protection which allows natural propagation, we think, meets 
the requirement of the statute. 

" We are mindful that this interi^retation deprives the public at 
large, by the infliction of severe penalties for infraction of the law, 
of the pleasure and profit of fishing and hunting in a very large por- 
tion of the Adirondack forest, and gives to men of great wealth, who 
can buy vast tracts of land, great protection in the enjoyment of their 
privileges. The wisdom of the Legislature in prescribing exemplary 
damages, and making fishing and hunting upon pinvate parks a mis- 
demeanor is not for the court to review. It was within its province 
to do so if it saw fit. Exemplary damages are no new thing for wiUful 
conduct, and the Legislature is constantly enacting that certain willful 
injuries shall be deemed misdemeanors. 

" The burden was on the defendant to show that the stream in which 
he fished has been dedicated to the public. The plaintiff being the owner 
of the land through which it flowed, it was prima facie private prop- 
erty; and upon the plaintiff showing compliance with the statute he 
was presump)tively entitled to recover. 

'' There was no proof that the stream in which the defendant was 
fishing had been, in contemplation of law, stocked by the State. He 
failed, therefore, to justify his acts, and by them incurred liability for 
the penalty in the fonn of exemplary damages provided by the statute." 

Stoching without the consent of the owner has always 
been held to give the public no rights. 
19 Cyc. 991. 

It was from the reading of the statute as it then stood 
that the idea of wading the stream arose. 

Nothing was held as to the form of the consent whether 
it should be written or oral, or whether it should be given 
in advance or could be given by ratification. The statute 
however contemplates a written consent so acknowledged 
as to entitle it to record, such as those contained in the 
blanks furnished to applicants for fish. 

To quote from the opinion in 96 A. D. 91 : 

" On an appeal from a former judgment in favor of the defendant 
the judgment was reversed and this court granted a new trial in the 



Private Parks and Posted Lands 329 

County Court. On the new trial the ease was submitted to a jury and 
a verdict was rendered in favor of the defendant, upon which judg- 
ment was entered, and from which judgment this appeal is taken. 

" The defendant's contention is that the plaintiff is not entitled to 
the benefit of said statute authorizing the laying out of his lands and 
waters as a private park and the devotion of the same to the propa- 
gation or protection of fish, birds or game by reason of the fact that 
waters included in said private park had been theretofore stocked with 
fish by the State of New York. 

" It is not claimed that the lands and waters included in said private 
park have been stocked with fish by the State at the request or with 
the consent of the plaintiff. The lands and waters so included in said 
private park were purchased by the plaintiff in three separate tracts, 
each tract including a large number of acres. When waters are stocked 
with fish by the State it takes away from the owner thereof certain 
property rights provided by said statute and results in a charge, to 
run with the land, which materially affects the owner's interest therein 
and the value of said lands and waters. The consent to such charge 
is bounded by the extent of the ownership of the person giving the 
consent. Within the bounds of the lands and waters owned by the 
person giving the consent there may be a question as to the extent of 
the waters included within the consent and as to one stream or portion 
of the stream being reasonably near to the waters so stocked with fish 
by the State. A question cannot arise as to whether another stream or 
distinct portion of the same stream is beyond the boundaries of the 
lands and waters owned by the person giving his consent to such stock- 
ing by the State. The charge runs with the land and not with the 
person and it is fixed at the time the consent is given and the waters 
are stocked in pursuance thereof. It cannot be extended to other lands 
and waters simply by reason of the fact that the grantee of the waters 
stocked with fish by the State and of adjoining or other lands and 
waters is one and the same person. The lands and waters upon which 
the defendant trespassed were wholly lands and waters purchased by 
the plaintiff of the Dncey Lumber Company. It follows, therefore, that 
all of the evidence included in the record relating to lands purchased 
by the plaintiff or other person is immaterial for the purpose of show- 
ing that they are reasonably near to the lands purchased of the Ducey 
Lumber Company. 

" It is claimed by the defendant that the Ducey Lumber Company 
consented to persons who were strangers to their title stocking the 
waters upon lands so owned by it with fish furnished at the expense 
of the State. The evidence shows that one Ducey, who it is alleged was 
president of the Ducey Lumber Company, assented orally to certain 



330 Game Law Guide 

persons stocking the St. Regis waters with trout. Assuming that the 
waters included in said private park at the place where the defendant 
tished were so stocked pursuant to said consent it becomes important 
to determine whether the coiporation was bound by such assent so as 
to create a charge on its lands even in the hands of a bona fide pur- 
chaser from it. 

" The stocking of waters with fish furnished at the expense of the 
State was not one of the purposes for which said corporation was 
organized; the consent not being within the purposes of the corpora- 
tion or in the usual course of its business or incidental thereto, the 
president had no powder to make it without express authority." 

To quote from the opinion in 106 A. D. 345 : 

" This case has been twice before us on appeals by the plaintiff and 
the questions then raised fully considered, fh'st in 85 Appellate Divi- 
sion, 254, and again in 96 Appellate Division, 91. The facts and claims 
of the parties were there fully stated, and it is unnecessary to repeat 
them. 

*' The defendant now appeals from a verdict rendered against him 
by direction of the court. 

" The plaintiff moved for a direction of a verdict and the defendant 
moved for a nonsuit. Without the defendant asking to go to the jury 
upon any question, the court directed a verdict in favor of the plaintiff, 
leaving to the jury the question only as to whether the plaintiff should 
recover exemplary damages of twenty-five dollars for each of tliree 
trespasses or for only one trespass. The jury rendered a verdict against 
the defendant for eighteen cents damages. The plaintiff rested content 
with this verdict, but the defendant moved to set it aside, and an order 
was subsequently entered denying that motion. 

" This appeal presents two questions not heretofore specially con- 
sidered, the one being that the defendant was on a public highway 
running through plaintiff's park at the time of the alleged fishing and 
trespass, and the other that plaintiff cannot maintain an action for 
exemplary damages for trespass under the Forest, Fish and Game Law, 
but that such right, if any exists, is in the People of the State and not 
in the owner of the land. 

"With respect to the first claim it is sufficient to say that the pre- 
tended highway was a mere path or trail leading to the fishing grounds, 
and was in no sense a public thoroughfare so as to be or ever become 
a public highway. Besides, there was no request that the jury pass 
upon the question as to whether or not the path was a public highway 
upon which the defendant was justified in traveling or stopping. 

" Section 203, which provides for the recovery of exemplary damages 



Private Parks and Posted Lands 331 

not exceeding twenty-five dollars for each trespass committed in 
addition to the actual damages sustained, is found in article 11 of the 
law, which provides for the laying out of private parks, and defines 
tlie rights of the owner therein. 

" The word ' penalty ' is not used in connection with the giving of 
exemplary damages in section 203. But the plaintiff indorsed his sum- 
mons in the Justice's Court ' action for a penalty,' and in his com- 
plaint, after stating all the facts which, if true, would entitle him to 
the exemplary damages provided by the statute, alleges that tlie defend- 
ant became liable for said penalty and exemplary and actual damages 
in the sum and amount of fifty-five dollars. It is plain that the plain- 
tiff intended to sue for the damages given by the statute and not to 
bring his action for a common-law trespass simply. 

" We think that the provisions of section 188 have no application to 
the bringing of an action for exemplary damages by the owner of a 
private park established and maintained according to law, and that he 
can bring an action for the exemplary damages provided in section 203 
in his own name and without permission of the chief game protector or 
the Forest, Fish and Game Commissioner. The provisions of article 10, 
in which sections 185 and 188 are found, manifestly relate to the pen- 
alties incurred in the unlawful taking or killing or possession of the 
fish, birds and animals protected by law. The people can have no 
interest in trespasses upon a private park. The exemplary damages 
given by the statute and fixed at twenty-five dollars are for the tres- 
pass, and not for the fish or game taken. It would be a strange con- 
struction of the statute to say that a person might establish and 
maintain a private park for the propagation and protection of fish and 
game and that he was powerless to use the weapons given for its 
defense. 

" The jury gave the plaintiff but eighteen cents, whereas they could 
have given him not exceeding twenty-five dollars for each trespass or 
offense. If the plaintiff is content with this, as he is, the defendant 
cannot complain that the verdict is too small. Where one party sub- 
mits to a verdict the other cannot be heard to insist that it shall be 
set aside because it is unjust to the one recovering." 

It cannot be imagined that any landowner would con- 
sent to the stocking of a stream if he knew that thereby 
he would create a lien upon his lands. 

Such an interpretation of the statute would involve the 
right of any number of people to come upon his lands and 
trample across crops to reach the stream, for the adja- 



332 Game Law Guide 

cent owners might not have consented. Knowledge on 
the part of the owner apart from full consent could hardly 
be deemed a test, for some one, before the land owner 
could prevent it, might introduce fish into the stream 
against his protest or after it was done, inform him of 
the fact. Such a consent, if given, could hardly be bind- 
ing on a bona fide purchaser ivithout actual notice or the 
constructive notice given by the recorded, acknowledged 
consent now provided. 

The question as to fishing or hunting from the high- 
way has been decided against the public as has already 
been stated. 

See Realty Co. v. Johnson, 66 L. R. A. 439. 

All of the above considerations doubtless lead to the 
amendment of the law. The stockinfj upon which the 
case of Rockefeller v. Lamora seems to have been decided 
was done at a time covered, if at all, by chapter 319 of 
the Laws of 1896, and before the amendment made by 
Chapter 20 of the Laws of 1900, which radically changed 
the statute : 

" But waters stocked with fish by the state at any time after April 
seventeenth, eighteen hundred and ninety-six, shall not be laid out in 
such park. If waters in any such park are hereafter stocked by the 
state with the consent of the owner, the provisions of this article shall 
no longer apply thereto." 

There is no provision here about any waters lying 
open to the public. 

In 1905 the Attorney-General in his report at page 352 
distinguished between the stocking of streams in private 
parks and those on lands not private parks and held that 
the statute was applicable only to waters in private 
parks surrounded by land. It Avas also held that the 
character of the waters so stocked remained unchanged 
and w^ere still private. To the question as to whether the 
wading of the stream made any difference on the ques- 
tion of trespass there appears to have been no definite 
answer made. 



Private Parks and Posted Lands 333 

In 1911, Vol. 2, page 251, the Attorney-General stated : 

" If after the enactment of section 28, the state with the owner's 
consent, stocks the waters of a private park, it seems the owner may 
not invoke the provisions of this article against one tishing in such 
waters without permission, but I do not think the character of the 
waters has been changed from private to public by the state having 
stocked such waters. Under section 31 of the said law where a person 
had the exclusive right to fish upon enclosed land and water and com- 
plies with the statute, as to giving and posting notices, though the 
State had stocked such waters a person fishing therein without per- 
mission is liable under the penalty provided by section 32 of said law. 

" The owners could dedicate such land and water or they could be 
appropriated under the statute, but the mere stocking by the state 
cannot be said to be dedication or appropriation to public use." 

See sections 50, 152, 153, 366. 

To make the effect of stocking Avith consent cover both 
private parks and private lands not parks and both fish 
and game the amendment of 1912, Ch. 318, Section 360, 
was enacted: 

" But waters stocked with fish by the state at any time after April 
seventeenth, eighteen hundred and ninety-six, shall not be laid out in 
any such park. If waters or lands are hereafter stocked by the state 
with f.sh or game with the consent or knowledge of the owner, the pro- 
visions of this part shall no longer apply thereto." 

Section 360 now reads : 

A private park for the propagation and protection of fish, birds 
or quadrupeds may be established by the owner or person having 
the exclusive right to hunt or fish on private land and water, by 
publishing once a week for not less than four weeks in 9 news- 
paper printed in the county where such land or land and water 
are situated, a notice substantially describing the same and stating 
that it will be used as a private park to propagate and protect fish, 
birds or quadrupeds. Part of a private lake or pond may be laid 
out in a private park, if all riparian owners, including owners of 
the bed thereof, consent thereto in writing. If the state of New 
York be such owner such consent may be given by the commission. 
But waters stocked with fish by the state at any time after April 
seventeenth, eighteen hundred and ninety-six, shall not be laid out 
in any such park. If waters or lands are hereafter stocked by 



334 Game Law Guide 

the state with fish or game with the consent of the owner, the pro- 
visions of part XI shall no longer apply thereto. 

The provisions of Section 360 apply to lands devoted 
to the propagation and protection of fish and game and 
particularly concern unenclosed and uncultivated lands. 
Enclosed or cultivated lands can be parked, but unen- 
closed and uncultivated lands cannot be posted for the 
mere purpose of protecting the exclusive right to hunt or 
fish thereon. 

Compare section 362. 

Compare People v. Hall, 8 A. D. 15. 

See sections 371, 373, 200, 196. 

It has been claimed that lands stocked by the State 
with game with the consent of the owner may be either 
parked or posted against fishing and that lands, the 
waters on which have been stocked by the State with fish 
with the consent of the owner may be parked or posted 
against hunting and that appears to have been the legis- 
lative intent. 

While the lands and waters may be parked and posted 
by those having the exclusive rights, the consent to the 
stocking must be that of the owner or owners of the lands 
and the consent of lessees or owmers of the exclusive 
rights or other persons is of no effect as far as the rights 
of the owner of the lands are concerned. The word 
'' knowledge " was eliminated by the amendment of 1913. 
The consent of the o\v^ler of the lands could not affect 
prior rights of owners of the exclusive privileges prop- 
erly protected through record and notice where 
necessary. 

While the consent may it seems be oral, it should be for 
purposes both of proof and record, written, executed 
and acknowledged and these consents are supplied with 
the blanks furnished to applicants for fish and game. 

The Vermont statute provides : 

"A person making application for or receiving from the fish and 
game commissioner, f,sh fry or fingerlings for distribution in the waters 



Private Parks and Posted Lands 335 

of tliis state, who wilfully or intentionally deceives said co mm issioner 
in regard to tlie use to be made of such lisli fry or flngerlings or makes 
other use of the same than is represented in the application therefor, 
or prescribed by said commissioner, shall be guilty of a misdemeanor 
and fined not more than fifty dollars." 

The Connecticut statute provides: 

" No fish shall be furnished by the state for stocking any stream, 
river, pond, or lake from which the taking of fish is prohibited by the 
owner or lessee." 

Compare the applications for fish and affidavits of 
stocking. 

The Massachusetts statute provides: 

" No person, corporation or association shall be provided by the 
commonwealth with trout or trout spawn to stock waters owned or 
leased by him or them or under his or their control unless he or they 
first agree in writing with the commissioners on tisheries and game 
that such waters so stocked shall be free for the public to fish in during 
the season in which the taking of trout is permitted by law." 

\ 

Where the fact that lands or waters have been stocked 
by the State with the consent of the owner can be estah- 
lished the parking or posting of such property is ineffect- 
ual as far as holding a trespasser crvminally liable and 
liable for exemplary damages is concerned. It by no 
means follows that his lands lie open to the public. 

Any person hunting or fishing on the premises with- 
out the permission or consent of the owner is still a tres- 
passer and may be put off, sued for such damages as 
at common law he is liable for and may be enjoined from 
further trespasses, and no exception to this proposition 
appears to have been made as to lands and waters 
stocked with the consent of the owner after 1896 and 
prior to 1900. 

Where one wades the stream he is no less a trespasser 
than when he treads the banks. 

In the case of private parks the published notice must 
state that the premises will be used as a private park to 
propagute and protect fish, birds or quadrupeds or 



336 Game Law Guide 

words to that effect, but such requirement does not 
appear to be made as to the posted notice. 

The publication of the notice is required only as to 
lands parked, but publication may be made as to posted 
lands as well. 

Section 361 provides : 

Notices or aignboards not less than one foot square warning all 
persons against hunting or fishing or trespassing thereon for that 
purpose, shall be conspicuously posted and mavntained on a pri- 
vate park not more than forty rods apart close to and along the 
entire boundary thereof, and there shall be so placed at least one 
notice or signboard on each side and one at each corner of such, 
park and where an outer boundary runs along or under any 
waters, the nearest shore or banks within the park shall be deemed 
the boundary for the purpose of posting such notices or sign- 
boards. It shall also be considered due service of notice for tres- 
pass upon any person or persons, by serving them personally in 
the name of the owner or owners of such private park with a 
written notice containing a brief description of the premises, warn- 
ing all pei-sons against hunting or fishing or trespassing thereon. 

There is no requirement as to where or how the signs 
are to be put up as long as they are conspicuously placed 
nor as to the size, color or character of the lettering used 
provided it is legible. As to all persons not personally 
served with notice, the signs must be both posted and 
maintained. The name of the owner does not necessarily 
have to appear upon the sign, but it should be there in 
order to inform persons of the identity of the owner and 
the lands and to prevent fraud or mistake. Where notices 
are worn off, torn down, etc., they should be replaced as 
against all persons not personally served with notice. 

Section 362 provides : 

An owner or person having the exclusive right to hunt or fish 
upon inclosed or cultivated lands, or to take fish in a private pond 
or stream and desiring to protect the same, shall maintain notices 
or signboards, of the size and posted and maintained in the manner 
described in the preceding section. 



Peivate Parks and Posted Lands 337 

Enclosed lands are defined by Section 380, subdivision 
23: 

Where lands are referred to as " enclosed " or " wholly enclosed " 
the boundary may be indicated by wire, ditch, hedge, fence, road, 
highway, water or by any visible or distinctive manner which indi- 
cates a separation from the surrounding contiguous territory, 
except as otherwise provided. 

See section 372, subdivision 7. 

Section 362 does not apply to unenclosed, uncultivated 
lands. 

See section 360. 

No published notice is necessary in order to protect the 
exclusive rights upon such lands. 

"Boundary" and "enclosure" are not necessarily 
identical. 

In the instance of cultivated lands the posted notices 
themselves seem to constitute or indicate a boundary. 
In the instance of uncultivated lands the signs must be 
posted along the boundary of the enclosure and water or 
roads among other things appear to constitute enclosures. 
In the case of ivaters, they may, it appears, be posted 
against fishing without enclosure, but to successfully post 
them .against hunting, it seems they should be enclosed 
by something more than land or shore. 

The notices it seems may bound the territory set apart 
as a private park, but the notices alone do not constitute 
the lands enclosed. 

As to persons personally served with notice after the 
lands are once posted, the signs do not need to be main- 
tained, but as to all others the signs must be kept posted. 

Printed notices were formerly furnished by the Com- 
mission but Section 363, covering that proposition, was 
repealed in 1913. 

22 



338 Game Law Guide 

Section 364 provides : 

No person shall injure, deface, or remove, a notice or signboard, 
placed or maintained pursuant to the provisions of this article. 

Section 365 provides : 

No person shall take or disturb fish, birds or quadrupeds on any 
private park or private lands or trespass thereon for that purpose, 
after notices are posted as prescribed herein ; or, if the notices have 
been once posted or the land established as a private park, after 
personal service upon him in the name of the owner or owners of a 
written or printed notice containing a description of the premises 
and warning all pei-sons against hunting or fishing or trespassing 
thereon. 

The trespass contemplated is one for the purpose of 
fishing, trapping or hunting only. Trespasses for other 
purposes would not render the intruder liable except at 
common law. 

The law of 1892 provided that ' ' being on the land with 
gun or fishing tackle or apparatus or allowing hunting 
dogs thereon shall be deemed a violation," but as the 
statute now stands the purpose of the trespass would be 
a question of fact. 

The posting of lands unenclosed or uncultivated will 
not it appears render a trespasser liable under Part XI 
unless the premises are properly set apart as a private 
park for the bona fide propagation and protection of fish 
and game. 

See People v. Hall, and compare Rockefeller v. Lamora, 85 
A. D. 254. 

Section 366 provides : 

Any land oivned by the state, enclosed as defined by subdivision 
twenty-three of section three hundred and eighty of this chapter, 
except lands in the Adirondack and Catskill parks, may be set 
aside by the conservation commission as a game refuge upon pub- 
lishing the notice mentioned in section three hundred and sixty of 
this chapter and upon posting and maintaining the notices or 
signboards in the manner described in section three hundred and 
sixty-one of this chapter. The commission may purchase in the 



Private Parks and Posted Lands 339 

name of and for the use of the state in any town of the state 
outside the limits of the Adirondack and Catskill parks, lands con- 
taining not less than one hundred acres, or may purchase the 
shooting and fishing rights in connection with such lands, and 
may establish thereon a game refuge upon publishing and posting 
the notices as above provided. No person shall take or disturb 
fish, birds or quadrupeds on such state game refuges or trespass 
thereon for that purpose, after the notices are published and posted 
as above prescribed. Such lands shall remain a game refuge and 
private park for the propagation and p)rotection of fish, birds or 
quadrupeds as long as such lands remain the property of the 
state, or until the commission shall by an order to be published in 
the manner prescribed by section three hundred and sixty, permit 
the taking of fish, birds or quadrupeds upon such premises. 

See sections 50, 152, 153. 

In respect to such game refuges the State is treated as 
an individual proprietor and the same penal and exem- 
plary damage provisions apply as in the case of private 
lands. 

There is no provision exacting a penalty for the fish, 
birds or quadrupeds taken as though taken in close sea- 
son as is made in the case of closes, Section 153, or terri- 
tory covered by additional protective orders, Section 152. 

Section 366a provides : 

The conservation commission is also authorized to set aside 
the following tract of land as a game refuge surrounding the game 
farm at Sherburne, Chenango county. New York, bounded and 
described as follows : Commencing at a point in the village of 
Sherburne at the intersection of Main and State streets, and run- 
ning thence northerly in the highway leading from Sherburne 
village to Earlville village and crossing the Lackawanna railroad 
track at Baldwin station ; thence westerly from said Baldvtdn station 
about eighty-eight rods to a bridge across the east branch of the 
Chenango river where the said Sherburne-Earlville highway is 
intersected by the Earlville and Sherburne west-hill highway; 
thence southerly on the Sherburne west-hill highway two miles to 
Sherburne west-hill, and crossing at Sherburne west-hill highway 
leading from Sherburne village to Smyrna village; and running 
thence south from Sherburne west-hill along the Merril's ridge road 
to Sherburne Four Corners; being two miles and three hundred 



340 GrAME Law Guide 

and sixteen rods; and running thence northeasterly from Sher- 
burne Four Corners past the schoolhouse on the road leading from 
Sherburne Four Comers to Sherburne village; and thence easterly 
across the Chenango river and along the Pratt road, being about 
three miles and one hundred and sixty rods, to the place of 
beginning. 

) 

Section 182, subdivision 5, provides as to the punish- 
ment for violations of Part XI as follows : 

A person who violates any provision of part eleven shall be 
guilty of a misdemeanor, and shall be liable to exemplary damages 
in the sum of twenty-five dollars for each offense or trespass to 
be recovered by the owner of the lands, or hunting or fishing rights 
thereon, with costs of suit, in addition to the actual damages, all 
of which may be recovered in the same action. The consent in 
writing of such owner to hunt or fish on said lands during the 
open season shall be a defense to a prosecution under this section. 

See sections 26, 31 and 32. 
See Procedure. 

The exemplary damages are now fixed at the flat sum 
of twenty-five dollars. 

The civil action to recover the exemplary damages may 
be brought in a court of record instead of in justice's 
court and the recovery carries with it the costs regard- 
less of Section 3228 of the Code of Civil Procedure. 

See Furman v. Cunningham, 34 Hun, 606. 
See section 3250 of the Code. 

It is stated in Rockefeller v. Lamora, 106 A. D. 345, 
" The people can have no interest in trespasses on a pri- 
vate park." This being so the exemplary damages of 
course are recoverable by the owner of the exclusive 
rights but the fine, it seems, goes to the Commission and 
not to the toivn where the offense was committed under 
Sections 171 and 240 of the Town Law. Sections 26 and 
31, however, govern civil and criminal actions as to the 
locality of jurisdiction and Section 32 controls as to the 
punishment for the misdemeanor. 



Private Parks and Posted Lands 341 

The civil action for the recovery of the exemplary dam- 
ages must be brought by the owner of the exclusive right 
whether owner of the land or othei^'ise. The criminal 
prosecution may be started on the complaint of any per- 
son but the co-operation of the o^vner would be indispen- 
sable in the matter of proof. While the written consent 
of the owner unrevoked is the only defense available 
according to the statute a prosecution should and doubt- 
less would fail on proof of the unrevoked, oral consent 
or waiver of the owner. 

See Procedure and Arrests by Private Persons. 

If a license is given orally when it should be in ivritten 
form, the person giving it cannot object to acts done 
under it prior to revocation. 

See Pierrepont v. Barnard, 6 N. Y. 279. 
See Byron v. Blakeman, 22 Barbour, 336. 
See Gerard on Titles to Real Estate, 847. 

The termination of the license or permit makes the 
person a trespasser thereafter. 

29 Cye. 445. 

A temporary permit or license to fish or hunt on lands 
whether written or oral is not like a lease for a definite 
term or a sale of the exclusive rights discussed earlier in 
this chapter. There is a great conflict of authority as to 
whether a written or oral license or permit for any pur- 
pose for a definite time and for which a valuable consid- 
eration is paid can be revoked prior to its expiration and 
there is no decision to be found which holds that such a 
permit to hunt during the open season would be 
irrevocable. 

In Bingham v. Salene, 15 Oregon, 208, the grant of the 
exclusive hunting rights on lands and waters was held 
not to be a revocable license. That case, however, 
involved the absolute sale of a profit a prendre, a trans- 



342 Game Law Guide 

fer of which it being in the nature of an interest in lands 
must be in writing within the statute of frauds. 

See Isherwood v. Salene, 40 L. R. A. 299. 

For these reasons reliance should be placed only upon 
a lease or a grant of the exclusive rights. In all other 
cases the waiver of the trespass, no matter what form it 
takes, is best considered a favor to be sought and a privil- 
ege not to be abused. 

The Iowa statute goes so far as to provide for the 
revocation of the hunting license of a person who hunts 
on enclosed or cultivated lands without the permission of 
the owner. 

As a means of protection against persons not inclined 
to such a view and non-observers of the golden rule, it is 
beyond dispute advisable for land owners and owners of 
exclusive rights to post hunting and fishing grounds 
' ' hog tight, horse high and bull strong. ' ' 

Chapter 145 of the Laws of 1912 provides for the 
record of any instrument registering '' farm names " 
and it would seem that a reference in any notice to such 
record would constitute a valuable part of any description 
of the premises. 

It has been urged that the distinctions, both technical 
and substantial between priv.ate parks and posted lands 
not parks be abolished and exactly the same provisions 
as to posting, publishing, boundaries and enclosures be 
made where practicable as to all lands. It has also been 
contended that the law should definitely constitute the 
notices themselves the boundary or enclosure. 

In order, however, to avoid these present distinctions, 
the approved manner of protecting the exclusive rights 
to hunt and fish on lands would evidently be as follows : 

First. The lands should be enclosed within the mean- 
ing of the statute whether they are cultivated or not. 

Second. The notice stating that they are established 



Peivate Parks and Posted Lands 343 

as a private park for the propagation and protection of 
game should be published. 

See Rockefeller v. Lamora, 85 A. D. 254. 

Third. The lands should be posted as provided in Sec- 
tion 361. The whole premises should be posted as one 
tract; and streams or ponds or timber tracts should 
be posted separately and as separate tracts where 
practicable. 

Fourth. Written notices should be served personally 
upon particularly obnoxious individuals. 

Fifth. The notices should be renewed and kept posted. 

The language and text of the posted notice is imma- 
terial as long as in words it warns all persons against 
hunting, fishing, trapping or trespassing for such pur- 
poses. ' ' Hunting ' ' would, however, include ' ' trap- 
ping. " The notice may be confined to any one or more 
of such acts or it may embrace them all. The notices 
may be conspicuously nailed to fences, trees, posts or 
otherwise displayed. 

The Oklahoma statute even provides that the owners 
or lessees of private parks shall have authority to make 
and enforce additional rules not inconsistent with law, 
for the protection of fish and game. In this connection 
if permission is given to a person to hunt or fish on posted 
lands upon stated conditions, a violation of the condi- 
tions might avoid the consent and render him liable 
under the statute as for trespass. 

The owner may demand for inspection the production 
of a trespasser's hunting license (and should be able to 
do so in the case of anglers) in order to identify him and 
if refusal is made, he may arrest him for either the tres- 
pass where the lands are properly posted or the refusal 
to exhibit the license and turn him over to a peace 
officer or take him before a magistrate, and prosecute 
criminally ; or he may bring the civil action for exemplary 
damages or he may do both. 



344 Game Law Guide 

He can put tlie trespasser off his premises using only 
such force as is necessary to accomplish the purpose and 
it is the duty of the trespasser when ordered off to leave 
by the most direct course which will occasion the least 
damage. 

Even a trespasser may defend himself against wanton 
and malicious violence. 

People V. GUlick, Hill & Den. Supp. 229. 

He may also have recourse to the injunction. 
Bosta Land Co. v. Burdick, 90 Pac. 532. 

There are a few other important legal propositions of 
concern to landowners and sportsmen Avhich properly 
have a place here. 

The exclusive right to hunt or fish upon lands and 
waters must be reasonably exercised at seasonable times 
and in legitimate ways and all unnecessary injury to 
crops or other property must be avoided. 

Bingham v. Salene, 15 Oregon, 208. 

19 Cyc. 989. 

Ingham on Animals, 573. 

The owner of the land who has granted to others the 
exclusive rights thereon may operate, drain and clear the 
land provided he acts in good faith, but may be liable for 
acts of bad faith. 

Isherwood v. Salene, 40 L. K. A. 299. 

It was held in the case of Bingham v. Salene that the 
grantee of the sole and exclusive hunting rights on lands 
had no authority under the particular written instrument 
involved in that case, to authorize or issue permits to 
other persons, to exercise like rights against the objec- 
tion of the grantor although it was held that the rights 
themselves might be assigned. 

See Salene v. Isherwood, 55 Oregon, 263. 

See Authorities cited in footnote to Isherwood v. Salene. 



Pkivate Parks and Posted Lands 345 

Damages may be recovered by the owner of the exclu- 
sive fishing rights against one who runs chemicals into 
the stream thereby injuring the fishing privilege. 

Hodges V. Pine Products Co., 33 L. R. A. 74. 
See Smith v. Cranford, 84 Hun, 318. 

As against licenses or persons on the premises by 
permit or invitation the owner can enforce liability for 
any actual damages done. 

The owner ordinarily cannot be said to be liable in 
negligence to persons on the land by mere permission 
or to trespassers except for affirmative acts such as the 
infliction of ivanton or malicious injury. Wliere persons 
are on the land by invitation, it seems that the owner may 
be liable for the absence of such care as the circumstances 
of the case require. 

Fox V. Warner-Quinlan Co., 204 N. Y. 240. 
Weitzman v. Barber Co., 190 N. Y. 452. 

i 
The owner would be liable to trespassers for injuries 
received by coming in contact with dangerous devices set 
and designed to injure, or hidden pitfalls, 

Forbrick v. Electric Co., 45 M. 452. 
People V. Most, 35 M. 145. 

The owner would be liable for injuries received from 
a wild animal kept by him. 

Van Leuven v. Lyke, 1 N. Y. 516. 
Hays V. Miller, 11 L. R. A. 748. 
Leonard v. Donoghue, 87 A. D. 104. 

The owner would be liable for injuries caused by 
domestic animals including horses, bulls, rams, dogs, etc., 
where he has knowledge of their vicious nature. 

Muller V. McKesson, 73 N. Y. 195. 
Lynch v. McNally, 73 N. Y. 347. 
Benoit v. Troy R. R. Co., 154 K Y. 223. 



346 Game Law Guide 

Moynahan v. Wheeler, 117 N. Y. 285. 
Lettis V. Homing, 67 Hun, 627. 
People V. Shields, 142 A. D. 194. 

It has been held that the keeper of bees must so locate 
the hives as to avoid unnecessary danger to persons on 
the highway or upon the premises. 

Parsons v. Manser, 62 L. R. A. 132. 

Trespass alone is no defense to an action brought to 
enforce such liability, but where the trespasser with 
knoivledge of the dangers voluntarily places himself 
within their reach, he assumes the risks and cannot 
recover. 

Molloy V. Starin, 113 A. D. 852. 

This rule as to assumed risk and contributory negli- 
gence does not appear to apply to vicious dogs and their 
owner with knowledge or notice is liable for their acts, if 
unconfined, under all ordinary circumstances. 

Woodridge v. Marks, 17 A. D. 139. 
Loomis V. Terry, 17 Wendell, 497. 

To show how far this principle of assumed risk, etc., 
has been carried, where a caretaker had been instructed 
to shoot with a rifle in the direction of trespassers in 
order to drive them off and a trespasser who had knowl- 
edge of the practice was wounded by one of the bullets 
it was held that he was guilty of contributory negligence, 
had assumed the risks and could have no cause of action. 

Magar v. Hammond, 171 N. Y. 377. 

A trespasser with knowledge that there are spring 
guns located in woods, though ignorant of the particular 
spots where they are placed cannot maintain an action 
for an injury received from the discharge in consequence 
of his accidentally treading on the latent wire communi- 



Peivate Parks and Posted Lands 347 

eating with the gun. The same rule applies as to other 
dangerous devices, pitfalls, etc. 

Illott V. Wilkes, 2 Barn. & Aid. 304. 

What is perhaps of most concern to the average hunter 
is the dangers which his dog may encounter. 
See Graham v. Smith, 40 L. R. A. 503. 

It is well understood that dogs which wrongfully chase, 
worry or wound sheep or angora goats may be killed by 
any person with impunity. 

See sections 117 and 123 of the County Law. 

Such a dog may it seems be killed on sight at any time. 

Smith V. Wetherill, 78 A. D. 49. 

The statute however does not apply to dogs worrying 
horses, cattle or animals other than sheep or goats. 
Van Etten v. Noyes, 128 A. D. 406. 

In cases where other domestic animals are threatened 
by dogs the right to kill them depends upon the necessity 
of so doing in order to prevent injury to the domestic 
animal. 

Ingham on Animals, 127-129. 

2 Cyc. 416^17. 

Collinson v. Wier, 91 M. 501. 

It has been held that the right to kill dogs in order 
to protect inanimate property is based upon the same 
considerations as the right to kill in protection of animate 
property. 

2 Cyc. 417. 

A dog cannot be killed simply because he is a tres- 
passer. 

Rimbaud v. Beiermeister, 168 A. D. 596. 



348 Game Law Guide 

But the right to kill a dog found trespassing and 
endangering property is not aifected by the relative value 
of the dog and the property being injured. 

Simmonds v. Holmes, 61 Conn. 1. 
Collinson v. Wier, 91 M. 501. 

In Reis v. Stratton, 23 111. App. 314, it was held that 
a person would not be justified in killing a val'uable 
animal found destroying property of little value. 

In Lipe v. Blackwelder, 25 111. App. 119, it was held 
lawful to kill a dog which was running through grain and 
injuring the crop. The exact contrary was held in Tyner 
V. Cory, 5 Ind. 216. 

Poisoning dogs is prohibited by section 190 of the 
Penal Law. 

There is a clash of decisions on the right of a land- 
owner to kill dogs which are pursuing game. The main 
authorities on this question appear to be English cases. 

In the case of Townsend v. Wathen, 9 East. 277, it 
was declared to be unlawful to set baited traps in the 
woods for the purpose of catching hunting dogs. 

In the case of Deane v. Clayton, 7 Taunt. 489, the 
defendant had set dog spikes in the trees in his woods so 
placed as to let hares and rabbits run under them but 
calculated to injure any dog which might be in pursuit. 
The plaintiff's dog ran into the woods in chase of a rab- 
bit and was killed on one of the spikes. The four judges 
before whom the case was argued conceded the qualified 
property right of the owner of the land in and to the 
game found thereon, but were evenly and hopelessly 
divided as to the right of the owner to protect such a 
property in that or any other manner. 

In Jordin v. Crump, 8 M. & W. 782, a later case, it was 
held that dog spears set for the purpose of protecting 
game and disabling hunting dogs were lawful. 



Private Parks and Posted Lands 349 

The general principle laid down by these English cases 
appears to have been disapproved of in North Carolina 
and Connecticut. 

Parratt v. Hartsfield, 4 Dev. & B. L. 110. 

Johnson v. Patterson, 14 Conn. 1. 

From these authorities it seems that under the English 
or common law rule the owner of land is entitled to pro- 
tect his qualified property in the wild animals in a state 
of nature upon the lands, against injury from dogs. The 
application of the civil law rule would render any such 
proposition untenable. 

In any event the prudent person will see that there is 
cause to complain neither of his dog nor himself. 

All rules ride out to sea when it comes to the question 
of fighting dogs. 

It was held in Boecher v. Lutz, 20 "Weekly Digest 48i, 
that when two dogs were fighting and could not other- 
wise be separated, the dog which had been the aggressor 
might be killed. 

But the ethics of a dog fight is admirably set forth in 
the case of Wiley v. Slater, 22 Barbour, 506 : 

" This is the first time I have been called upon to administer the 
law in the ease of a pure dog fight, or a fight in which the dogs, instead 
of the owners, were the principal actors. I have had occasion to preside 
upon the trial of actions for assaults and batteries originating in 
affrays in which the masters of dogs have borne a conspicuous part, 
and acquitted themselves in a manner which might well have aroused 
the envy of their canine dependents. The branch of the law, there- 
fore, applicable to direct conflicts and collisions between dog and dog 
is entirely new to me, and this ease opens up to me an entirely new field 
of investigation. I am constrained to admit total ignorance of the 
code duello among dogs, or what constitutes a just cause of offense and 
justifies a resort to iiltima ratio regem, a resort to arms, or rather to 
teeth, for redress; whether jealousy is a just cause of war, or what 
different degrees and kinds of insult or slight, or what violation of the 
rules of etiquette entitle the injured or offended beast to insist upon 
prompt and appropriate satisfaction, I know not, and am glad to know 
that no nice question upon the conduct of the conflict on the part of 



350 Game Law Guide 

the principal actors arises in this case. It is not claimed, upon either 
side, that the struggle was not in all respects dog-like and fair. Indeed 
I was not before aware that it was claimed that any law, human or 
divine, moral or ceremonial, common or statute, undertook to regulate 
and control these matters, but supposed that this was one of the few 
privileges which this class of animals still retained in the domesticated 
state; that it was one of their reserved rights, not surrendered when 
they entered into and became a part of the domestic institution, to 
settle and avenge, in their own way, all individual wrongs and insults, 
without regard to what Blackstone or any other jurist might write, 
speak or think of the ' rights of persons ' or ' rights of things.' I have 
been a firm believer with the poet in the instinctive if not semi-divine 
right of dogs to fight; and with him would say, 

' Let dogs delight to bark and bite. 
For God hath made them so ; 
Let bears and lions growl and fight, 
For 'tis their nature to.' 

" It is possible, that had the owners of both dogs been present the 
belligerents would have been changed, and the familiar questions grow- 
ing out of son assault desmene and molliter manus imposuit would have 
been presented, but no such questions are made here. 

" The defense is not rested upon the principle of self-defense or 
defense of the possession of the master of the victorious dog. Had this 
defense been interposed, a serious and novel question would have arisen, 
as to the liability of the offending dog for excess of force, and whether 
he would be held to the same rules which are applied to human beings 
in like cases offending; whether he would be held strictly to the proof 
of the necessity and reasonableness of all the force exerted, under the 
plea that in defense of his carcass or the premises committed to his 
watch and care, ' he did necessarily a little bite, scratch, wound, tear, 
devour and kill the plaintiff's dog, doing no unnecessary damage to 
the body or liide of the said dog.' 

"Addressing myself to the question really made in the case, then, 
the first difficulty I meet with is the want of proof of ownership by 
the defendant of the offending dog. The plaintiff made a prima facie 
ease, by proving an apparent possession of the dog, but the appear- 
ances were entirely explained by the witness Nowell, who testifies that 
the dog was not owned by the defendant, nor kept nor harboured by 
him, but was really a trespasser on the premises, being kept at the shop 
adjoining. L'pon the question of ownership there is really no conflict 
of testimony. 

" 2. Whatever may have been the character and habits of the dog, 
there is no evidence that he was the aggressor, or in the wrong, in this 



Private Parks and Posted Lands 351 

particular fight. The plaintiff's dog may have provoked the quarrel 
and have caused the fight; and if so, the owner of the victor dog 
whoever he may be, cannot be made responsible for the consequences. 

" 3. There is no evidence that the dog alleged to belong to the defend- 
ant was a dangerous animal, or one unfit to be kept. The cases cited, 
in which dogs have attacked human beings, although trespassers, and 
the owners have been held liable, are not applicable. It is one thing 
for a dog to be dangerous to human life, and quite another to be 
unwilling to have strange dogs upon the master's premises. To attack 
or drive off dogs thus suffered to go at large, to the annoyance if not 
to the detriment and danger of the public, would be a virtue, and that 
is all that can be claimed, upon the evidence, was done in this case. 
Owners of valuable dogs should take care of them proportioned to their 
value, and keep them within their own precincts or under their own 
eye. It is very proper to invest dogs with some discretion while upon 
their master's premises, in regard to other dogs, while it is palpably 
wrong to allow a man to keep a dog, who may or will, under any 
cii-cumstanees, of his own volition, attack a human being. If owners 
of dogs, wliether valuable or not, suffer them to visit others of their 
species, particularly if they go uninvited, they must be content to have 
them put up with dog fare, and that their reception and treatment 
shall be hospitable or inhospitable, according to the nature or the par- 
ticular mood and temper at the time, of the dog visited. The courtesies 
and hospitalities of dog life cannot well be regulated by the judicial 
tribunals of the land. 

" 4. Evidence is slight that the dog died in consequence of this fi.ght. 
I should infer, from the evidence, that he continued his annoying visi- 
tations until some one who did not own a white dog with black spots 
on his head, made use of a shot gun or ' Sharpe's rifle,' or some other 
substitute, to abate the nuisance. But as this question is left in doubt 
by the evidence, the judgment of the justice is conclusive as to the cause 
of death. I can, however, see no just grounds for the judgment. It 
can only be supported upon the broad ground that when two dogs fight 
and one is killed, the owner can have satisfaction for his loss from the 
owner of the victorious dog; and I know of no such rule. The owner of 
the dead dog would, I think, be very clearly entitled to the skin, although 
some, less liberal, would be disposed to award it as a trophy to the 
victor, and this rule would ordinarily be a full equivalent for the 
loss; and with that, unless the evidence differ materially from that in 
this case, he should be content." 

As an almost invariable rule socalled shooting accidents 
are the consequence of the negligence of the operator 



352 Game Law Guide 

of the gun and create a liability against the shooter in 
favor of the person injured not only on the theory of 
negligence, but also on that of assault and trespass. 

Bullock V. Babcock, 3 Wendell, 391. 

See American Digest, vol. 48, page 2826. 

Where a person is hunting and while hunting negli- 
gently shoots another he is ordinarily liable, as was 
stated in Hankins v. Watkins, 77 Hun, 360 : 

'' This action was for negligence. The plaintiff claimed, and the evi- 
dence given in his behalf disclosed, that on the 14th day of October, 
1889, he and his brother went to the head of Cayuga lake, duck hunt- 
ing; that they took with them two tame ducks to be used as decoys; 
that while they were preparing to anchor them as such decoys one of 
them escaped from the boat in which they were, and the plaintiff and 
his brother pursued it; that while doing so the defendant shot at them 
and seriously injured the plaintiff; that the accident occurred a few 
minutes before six o'clock in the morning; that it was clear and broad 
daylight, being about fifteen or twenty minutes before sunrise; that 
between the place where the defendant stood when he fired and the boat 
in which the plaintiff and his brother were, there was nothing to obstruct 
the defendant's vision, so that if he looked before firing he would have 
seen the plaintiff, his brother and the boat in which they were at the 
time. The evidence of the defendant was somewhat in conflict with 
that of the plaintiff, and tended to show that it was not sufficiently light 
at the time to enable him to see the plaintiff, and that his vision was 
obstructed by the limbs of trees and shrubs that stood between him 
and the plaintiff. 

" The question whether the transaction was as claimed by the plaintiff, 
or as claimed by the defendant, was submitted to the jury and it found 
in favor of the plaintiff. Therefore, in examining the questions of the 
defendant's negligence and the plaintiff's freedom from contributory 
negligence, we must regard the facts proved by the plaintiff as the 
established facts in this case. Assuming the transaction to have occurred 
in the manner testified to by the plaintiff and his witnesses, it is quite 
obvious that both the question of the defendant's negligence and the 
question of the plaintiff's freedom from contributory negligence were 
questions of fact that were properly submitted to the jury, and that 
its findings thereon should be regarded as final. 

" The appellant, however, insists that the rule of law applicable to 
this case is, that ' One who is hunting in a " wilderness " is not bound 



Private Parks and Posted Lands 353 

to anticipate the presence, within range of his shot, of another man, 
and is not liable for any injury caused unintentionally by him to a 
person of whose presence he was not aware,' and cites 2 Wait's Actions 
and Defenses, 702, and Bizzell v. Booker (16 Ark. 308), to uphold 
his insistence. When we examine the Bizzell ease we not only find that 
the facts in that case were wholly unlike those in the case at bar, but 
that all that was held in that case was, that where a person doing: a 
lawful act, or an act not mischievous, rash, reckless or foolish, and 
naturally liable to result in injury to others, he was not responsible 
for damages resulting therefrom by accident or casualty, while he was 
in the exercise of such care and caution to avoid injury to others as 
a prudent man would observe under the circumstances surrounding 
him. We also find that in that case it was expressly held that such 
a person would be answerable for damages which resulted from his 
negligence or want of such care and caution on his part. Referring 
to Wait's Actions and Defenses, we find the statement above quoted, 
and that the Bizzell case is the only authority cited to sustain it. We 
fail to see liow the doctrine of the Bizzell case in any way aids the 
defendant, but, on the contrary, it seems to be an autliority in favor 
of the plaintiff, as the court in that case expressly indorsed the doe- 
trine laid down by Bronson, Ch. J., in Vandenburgh v. Truax (4 Den. 
464), as follows: 'It may be laid down as a general rule, that when 
one does an illegal or mischievous act which is likely to prove injurious 
to others, and when he does a legal act in such a careless and improper 
manner that injury to third persons may probably ensue, he is answer- 
able in some form of action for all the consequences which may directly 
and naturally result from his conduct. It is not necessary that he 
should intend to do the particular injury which follows, nor, indeed, 
any injury at all.' In Shearman & Redfield on Negligence (686), it is 
said : *A very high degree of care is required from all persons using 
firearms in the immediate vicinity of other people, no matter how 
lawful or even necessary such use may be,' and the cases of Weaver 
V. Ward (Hob. 134) ; Castle v. Duryee (1 Abb. Ct. App. Dec. 327) ; 
Moody V. Ward (13 Mass. 299) ; McClenaghan v. Brock (5 Rich. Law 
[So. Car.] 17) ; Haaek v. Fearing (5 Rob. 528) ; Moebus v. Becker 
(46 N. J. Law, 41), are cited to sustain that proposition, Cooley, in 
his work on Torts, page 705, says : * When one makes use of loaded 
weapons he is responsible only as he might be for any negligent hand- 
ling of dangerous machinery, that is to say, for the care proportioned 
to the danger of injury from it.' LTnder the circumstances disclosed 
by the evidence in this case, and upon the authorities bearing upon 
the question of the defendant's liability, we think there is no doubt of 
the plaintiff's right to recover in this action. 

23 



354 Game Law Guide 

" On the trial the defendant was asked : ' Did you intend to shoot 
this plaintiff?' This question was objected to by the plaintiff, the 
objection was sustained and the defendant duly excepted. While it 
has been held that when the question of the party's intent is one of 
the issues in an action, he may testify that he had or did not have the 
intent charged, still, where the issue is not one of intent, such evidence 
is inadmissible, as his intent is wholly immaterial. In this case, while 
the complaint charges the defendant with having wrongfully and negli- 
gently caused the plaintiff's injury, there was no claim on the trial 
that his act was intentional, but, on the contrary, the plaintiff sought 
to recover only upon the ground of the defendant's negligence. This 
is shown very plainly by that portion of the charge of the learned 
trial judge, in which he said to the jury: 'It is not claimed that he 
(defendant) wilfully shot the plaintiff. The plaintiff's counsel repu- 
diates the idea that he deliberately and wilfully, intending to hit these 
men, shot at them, for they claim that the act was a lawless act, and 
that the act was careless and negligent, and not deliberate or wilful.' 
Again, the judge says : ' But this is not a charge of wilful shooting.' 
Thus the question at issue between the parties on the trial was whether 
the plaintiff's injury was caused by the defendant's negligence, and no 
question of his intent was involved in the ease. We find no error in this 
ruling. 

" The defendant was also asked : ' Did you handle your gun that 
morning in a careful, prudent and cautious manner"?' This was 
objected to, the objection sustained and the defendant excepted. We 
think this exception was not well taken. If by this question the 
defendant sought to show that in his opinion he was not negligent in 
shooting the plaintiff, it was inadmissible, as that was a question not 
for the witness, but for the jury to decide. (Carpenter v. Eastern 
Transportation Co., 71 N. Y. 574; 16 Am. & Eng. Ency. of Law, 463, 
and cases cited.) If the defendant's purpose was to show that he 
handled his gun with care, it was immaterial, as the negligence charged 
did not relate to the manner in which he used his gun, but consisted in 
his shooting towards the plaintiff without previously looking to see 
what was within the range of his gun when he fired. The defendant 
was also asked : ' Have you had considerable experience in handling 
a gun and were you careful in handling your gun upon the morning 
in question? '• which was objected to and excluded. This was in sub- 
stance the same as the previous question, and the evidence was properly 
rejected. We are also of the opinion that the court ]iroperly refused 
to admit the evidence called for by the question put to the witness 
Brown, whether the defendant was ' a capable and careful hand to 
handle a gun.' 



Private Parks and Posted Lands 355 

" It appears that photographs had been taken of the place where 
this injury occurred. The. plaintiff was interrogated as to the relative 
condition, at the time when they were taken and when the injury 
occurred, of the trees, water and other things, as to what was done, 
and as to whether there was anything to obstruct the defendant's view. 
This evidence was objected to by the defendant, and admitted under 
this exception. As the photographs were not admitted in evidence or 
shown to the jury, we are unable to see how the defendant could 
possibly have been injured by the admission of this evidence. It is 
quite manifest that even if the evidence was inadmissible its admission 
was harmless, and, l:ience, we find in the ruling no reason to disturb 
tlie judgment." 

Gross negligence in the matter of handling a gun 
resulting in the death of the person injured ma}' amount 
to manslaughter. 

McDaniel v. State, 21 L. R. A. 678. 
Osborn v. State, 31 L. R. A. 966. 
State V. Stilt, 17 L. R. A. 308. 
State v. Horton, 1 L. R. A. 991. 

Penal Law, Section 1052, provides : 

" Such homicide is manslaughter in the second degree, when com- 
mitted without a design to effect death : 

" 1. By a person committing or attempting to commit a trespass, or 
other invasion of a private right, either of the person killed or of 
another, not amounting to a crime; or, 

" 3. By any act, procurement or culpable negligence of any person, 
which, according to the provisions of this article, does not constitute 
the crime of murder in the first or second degree, nor manslaughter 
in the first degree." 

The game laws of many of the States and of the prov- 
inces of Canada create heavy civil and criminal liabilities 
against persons hunting who regardless of intent injure 
other persons by the discharge of firearms. Some of the 
enactments are particularly severe in cases of such shoot- 
ing near cities or incorporated villages. 

There are a few provisions of the Penal Law covering 
what are known as malicious mischiefs: 

Section 1425, subdivisions 1, 2, 3, 5, 6 and 12, provides 



356 Game Law Guide 

that a person shall be guilty of a misdemeanor who wil- 
fully: 

" 1. Cuts down, destroys or injures any wood or timber standing or 
growing, or which has been cut down and is lying on lauds of another, 
or of the people of the state; or^ 

" 2. Cuts down, girdles or otherwise injures a fruit, shade or orna- 
mental tree standing on the lands of another, or of the people of the 
state; or, 

" 3. Severs from the freelwld of another, or of the people of the 
state, any produce thereof, or any thing attached thereto; or 

" 5. Enters without the consent of the owner or occupant any orchard, 
fruit garden, viiie^^ard or ground whereon is cultivated any fruit, with 
intent to take, injure or destroy any thing there growing or grown; or, 

" 6. Cuts down, destroj's or in any way injures any shrub, tree or vine 
being or growing within any such orchard or upon any such ground, 
or any building, frame work or erection thereon; or 

" 12. Takes or attempts to take, without the consent of the owner 
of any lake or pond, any fish from the waters thereof, provided such 
lake or pond is so situated that fish can not pass thereinto from the 
waters of any other lake, pond or stream, either public or owned by 
other persons; or, without the consent of the owner of any such lake 
or pond, places therein any piscivorous fish or any poison or other 
substance injurious to the health of fish, of lets the waters out of anj^ 
such lake or pond, with the intent to take fish therefrom or to hann 
fish therein." 

Section 1426 provides: 

"A person, who maliciously injures or destroys any standing crops, 
grain, cultivated fruits, or vegetables, the property of another, in any 
case for which punishment is not otherwise prescribed by this chapter 
or by some other statute, is guilty of a misdemeanor." 



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Game Law Guide 



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TREATY 

(Ratified and Made Public Aug. 29, 1916) 
PROTECTION OF MIGRATORY BIRDS 



MESSAGE FROM THE PRESIDENT OF THE UNITED STATES, 
TRANSMITTING CONVENTION BETWEEN THE UNITED 
STATES AND GREAT BRITAIN FOR THE PROTECTION OF 
MIGRATORY BIRDS IN THE UNITED STATES AND CANADA. 

August 22, 1916. — Message read; convention read the first time and referred 
to tlie Committee on Foreign Relations, and, together witli the message, 
ordered to be printed in confidence for the use of the Senate. 

To the Senate: 

In pursuance of the resolution adopted by the Senate on July 7, 1913, 
requesting the President to propose to the Governments of other countries 
the negotiation of a convention for the protection and preservation of 
birds, negotiations vv^ere by my direction initiated with the Government of 
Great Britain through the British ambassador for the conclusion of a 
convention that would insure protection to migratory and insectivorous 
birds in the United States and Canada. 

These negotiations have resulted in the signature, on August 16, 1916, 
of a convention for this purpose between the United States and Great 
Britain, which I transmit herewith to receive the advice and consent of 
the Senate to its ratification. 

The attention of the Senate is invited to the accompanying report of 
the Secretary of State and to tlie views of the Department of Agriculture 
therein presented. 

WooDROw Wilson. 

The White House, 

Washington, August 21, 1916. 

report of the secretary of state. 
Department op State, 

Washington, August 17, 1916. 
The President: 

The undersigned, the Secretary of State, has the honor to lay before 
the President, with a view to its transmission to the Senate, if his judg- 
ment approve thereof, to receive the advice and consent of that body to 
its ratification, a convention between the United States and Great Britain 
for the protection of migratory birds in the United States and Canada, 
signed at ^Vashington on August 16, 1916. 

This convention is the result of negotiations initiated with the British 
ambassador at Washington in pursuance of the resolution adopted by the 
Senate on July 7, 1913, " That the President be requested to propose to 
the Governments of other countries the negotiation of a convention for 
the protection and preservation of birds." 

The Department of Agriculture has taken keen interest in the negotia- 
tions, and has been of great help in their final conclusion. The views of 
that department regarding the negotiation of this treaty were expressed in 
a communication recently addressed to this department, as follows : 

Not very many years ago vast numbers of waterfowl and shorebirds nested 
within the limits of the United States, especially in the far West, but tlie 
extension of agriculture, and particularly the draining on a large scale of 
swamps and meadows, togetlier with improved firearms and a vast increase 
in the number of sportsmen, have so altered conditions that comparatively 



AlPPENdix — Treaty : Protection of Migratory Birds 

few migratory game birds nest within our limits. The greater part of the 
supply still remaining, the value of which must be estimated at many millions 
of dollars, breed largely in the Canadian provinces and consist of birds that 
winter within or to the south of the United States and journey back and 
forth in autumn and spring across our territory. 

That a very great number of people in the United States are personally 
interested in "the protection of our migratory wild birds is evidenced by the 
fact that there are about 5,000,000 sportsmen in this countiy and their 
number is steadily increasing. These men are all dependent upon the con- 
tinuance of our supply of wild fowl for their sport, and a very large number 
of them are in consequence taking an active interest in the present treaty. 
In addition the value of the proper protection of our migratory insectivorous 
birds is of the deepest interest to farmers for the practical assistance they 
give in destroying insects injurious to crops. 'Furthermore, millions of 
people in the United States are deeply interested in the conservation and 
increase of our bird life from an esthetic viewpoint, as well as on accoimt of 
their practical utility. As a result the number of persons who approve and 
are deeply interested in the conclusion and enforcement of the present treaty 
includes inanv millions. There is no question but that the Federal migratory 
bird law and' the present treaty for the protection of migratory wild fowl 
now being negotiated between the United States and Canada are conservation 
measures of prime importance. 

Respectfully submitted. 

Robert Lansing. 



CONVENTION. 

Whereas many species of birds in the course of their annual migrations 
traverse certain parts of the United States and the Dominion of Canada; 
and 

Whereas many of these species are of great value as a source of food or 
in destroying insects which are injurious to forests and forage plants on 
the public domain, as well as to agricultural crops, in both the United 
States and Canada, but are nevertheless in danger of extermination through 
lack of adequate protection during the nesting season or while on their 
way to and from their breeding grounds; 

the United States of America and His Majesty the King of the United 
Kingdom of Great Britain and Ireland and of the British dominions 
beyond the seas. Emperor of India, being desirous of saving from indis- 
criminate slaughter and of insuring the preservation of such migratory 
birds as are either useful to man or are harmless, have resolved to adopt 
some uniform system of protection which shall effectively accomplish such 
objects, and to the end of concluding a convention for this purpose have 
appointed as their respective plenipotentiaries: 

The President of the United States of America, Robert Lansing, Secre- 
tary of State of the United States; and 

His Britannic Majesty, the Right Honorable Sir Cecil Arthur Spring 
Rice, G. C. V. 0., K. C. M. G., etc.. His Majesty's ambassador extraordi- 
nary and plenipotentiary at Washington ; 

Who, after having communicated to each other their respective full 
powers which were found to be in due and proper form, have agreed to 
and adopted the following articles: 

Article I. 

The High Contracting Powers declare that the migratory birds included 
in the terms of this Convention shall be as follows: 
1, Migratory Game Birds: 
(a) Anatida? or waterfowl, including brant, wild ducks, geese, and swans. 



Appendix — Treaty: Protection of Migratory Birds 

(b) Gruid^e or cranes, including little brown, sandhill, and whooping 
cranes. 

(c) Rallidaj or rails, including coots, gallinules and sora and other rails, 

(d) Limicolis or shorebirds, including avocets, curlew, dowitchers, god- 
wits, knots, oyster catchers, phalaropes, plovers, sandpipers, snipe, stilts, 
surf birds, turnstones, willet, woodcock, and yellowlegs. 

(e) Columbidag or pigeons, including doves and wild pigeons. 

2. Migratory Insectivorous Birds: Bobolinks, catbirds, chickadees, 
cuckoos, flickers, flycatchers, grosbeaks, humming birds, kinglets, martins, 
meadowlarks, nighthawks or bull bats, nut-hatches, orioles, robins, shrikes, 
swallows, swifts, tanagers, titmice, thrushes, vireos, warblers, wax-wings, 
whippoorwills, woodpeckers, and wrens, and all other perching birds which 
feed entirely or chiefly on insects. 

3. Other Migratory Nongame Birds : Auks, auklets, bitterns, fulmars, 
gannets, grebes, guillemots, gulls, herons, jaegers, loons, murres, petrels, 
puffins, shearwaters, and terns. 

Article II. 
The High Contracting Powers agree that, as an effective means of pre- 
serving migratory birds there shall be established the following close 
seasons during which no hunting shall be done except for scientific or 
propagating purposes under permits issued by proper authorities. 

1. The close season on migratory game birds shall be between March 10 
and September 1, except that the close season on the Limicolae or shore- 
birds in the maritime Provinces of Canada and in those States of the 
United States bordering on the Atlantic Ocean which are situated wholly 
or in part north of Chesapeake Bay shall be between February 1 and 
August 15, and that Indians may take at any time scoters for food but 
not for sale. The season for hunting shall be further restricted to such 
period not exceeding three and one-half months as the High Contracting 
Powers may severally deem appropriate and define by law or regulation. 

2. The close season on migratory insectivorous birds shall continue 
throughout the year. 

3. The close season on other migratory nongame birds shall continue 
throughout the year, except that Eskimos and Indians may take at any 
season auks, auklets, guillemots, murres and puffins, and their eggs, for 
food and their skins for clothing, but the birds and eggs so taken shall 
not be sold or offered for sale. 

Article III. 

The High Contracting Powers agree that during the period of ten years 
next following the going into effect of this Convention, there shallbe a 
continuous close season on the following migratory game birds, to-wit : 

Band-tailed pigeons, little brown, sandhill and whooping cranes, swans, 
curlew and all shorebirds (except the black-breasted and golden plover, 
Wilson or jack snipe, woodcock, and the greater and lesser yellowlegs) ; 
provided that during such ten years the close seasons on cranes, swans 
and curlew in the Province of British Columbia shall be made by the 
proper authorities of that Province within the general dates and limitations 
elsewhere prescribed in this Convention for the respective groups to which 
these birds belong. 

Article IV. 
The High Contracting Powers agree that special protection shall be 
given the wood duck and the eider duck either (1) by a close season 



Appendix — Treaty : Protection of Migratory Birds 

extending over a period of at least five years, or (2) by the establish- 
ment of refuges, or (3) by such other regulations as may be deemed 
appropriate. 

Article V. 

The taking of nests or eggs of migratory game or insectivorous or non- 
game birds shall be prohibited, except for scientific or propagating pur- 
poses under such laws or regulations as the High Contracting Powers 
may severally deem appropriate. 

Article VI. 
The High Contracting Powers agree that the shipment or export of 
migratory birds or their eggs from any State or Province, during the 
continuance of the close season in such State or Province, shall be pro- 
hibited except for scientific or propagating purposes, and the international 
traffic in any birds or eggs at such time captured, killed, taken, or shipped 
at any time contrary to the laws of tlie State or Province in which the 
same were captured, killed, taken, or shipped shall be likewise prohibited. 
Every package containing migratory birds or any parts thereof or any 
eggs of migratory birds transported, or offered for transportation from 
the Dominion of Canada into the United States or from the United States 
into the Dominion of Canada, shall have the name and address of the 
shipper and an accurate statement of the contents clearly marked on the 
outside of such package. 

Article VII. 

Permits to kill any of the above-named birds which, under extraordinary 
conditions, may become seriously injurious to the agricultural or other 
interests in any particular community, may be issued by tlie proper 
authorities of the High Contracting Powers under suitable regulations pre- 
scribed therefor by them respectively, but such permits shall lapse, or may 
be cancelled, at any time when, in the opinion of said authorities, the 
particular exigency has passed, and no birds killed under this article shall 
be shipped, sold, or offered for sale. 

Article VIII. 

The High Contracting Powers agree themselves to take, or propose to 
their respective appropriate law-making bodies, the necessary measures 
for insuring the execution of the present Convention. 

Article IX. 

The present Convention shall be ratified by the President of the United 
States of America, by and with the advice and consent of the Senate 
thereof, and by His Britannic Majesty. The ratifications shall be 
exchanged at Washington as soon as possible and the Convention shall 
take effect on the date of the exchange of the ratifications. It shall remain 
in force for fifteen years, and in the event of neither of the High Con- 
tracting Powers having given notification, twelve months before the expira- 
tion of said period of fifteen years, of its intention of terminating its 
operation, the Convention shall continue to remain in force for one year 
and so on from year to year. 

In faith whereof, the respective Plenipotentiaries have signed the pres- 
ent Convention in duplicate and have hereunto affixed their seals. 

Done at Washington this sixteenth day of August, one thousand nine 
hundred and sixteen. 

[seal.] Robert Lansing. 

[sEAL.l Cecil Spring Rice. 



INDEX 



SECTION PAGE 

Accidental shooting 351 

152 Additional protection 80-82 

Agency 134 

185 Aliens HI 

380-20 Angling, definition of 163 

Animals 

foreign 57 

tamed 250-252 

wild 262 

vicious 345 

381 Application of the law 133 

59 Appropriation of lands and waters 45 

Automobiles 

222a hunting from 144 

169 search of 207 

Birds 

210 game birds 155 

federal regulations 59 

213 rails 158 

216 shore birds 160 

214 upland birds 158 

211 waterfowl 155 

218 pigeons, antwerp and homing 137 

219 song, plume and insectivorous 135 

federal regulations 60 

219 outlawed birds 135 

Breeding 

200 furbearing animals 145 

372 game 200 

371 trout 198 

54 Campfires 33, 54 

Canada, treaty with 67, 68 

[367] 



368 Index 

SECTION PAGE 

316 Clams 188 

380-5 Close season, definition of 129 

153 Closes , 82-84 

60 Communal forests 45 

29, 50 Compromises 26 

36 Confession of judgment 242 

154 Confiscation 100 

animals 87, 97 

devices 87, 97 

Conservation Commission 13 

150 general powers as to fish and game 77 

50 general powers as to lands and forests 24 

Conservation Department 13 

382 Construction of law 229 

22, 290 

291 Dams 18, 315 

Dangerous devices, liability for 345 

Decoys 157 

155, 250 Deleterious fish 102, 167 

Director}^ 357 

Dogs 

380-29 at large 149 

fighting 349 

177-1 hunting with aid of 139 

193 in forest preserve 149 

liability for acts of 143 

right to kill 149, 347 

training afield 139, 143 

249 Drawing off water 167 

54 Drought in forest preserve 33 

176, 220 Eggs 127, 137 

380-23 Enclosed lands, definition of 337 

182 Exemplary damages 214 

245 Explosives 165 

380-28 Family immediate, definition of 119 

Federal laws 

Lacey act 56 

regulations 59, 60 

treaty 67, 6S 

Weeks-McLean Law 59 

196 Ferrets 151 



Index 369 

SECnON PAGE 

32, 63 Fines 52, 239 

Firearms 

negligence. . . 351 

Sullivan Law 113 

52-56 Fires 

balloons 34 

boilers 34 

camping 54 

district rangers 29 

drought 33 

employment of fire fighters 30 

engines 34 

expenses of fighting fires 32 

fire districts 31 

fire patrol 35 

fire wardens 29 

fires to clear lands 34 

forest rangers 29 

observation stations 31 

prevention and fighting 30 

railroads 35 

rules and regulations 54 

setting fires 33 

supervisors of towns 31 

62-10 Fire towns 23 

150 Fish hatcheries 77 

150 Fish and game, general powei-s 77 

176, 177-2 Fish, taking of, general restrictions 127, 162 

380-6 definition of 162 

231 bass 173 

380-15 definition of 173 

236 blue pike 175 

253-255a bullheads 168 

253-255a carp 169 

253-255a catfish 169 

253-255a dogfish 169 

256 eels 170 

380-6 fish not protected by law 162 

241 icefish 177 

234 lake trout 174 

380-14 definition of 174 

239 maskalonge 177 

253-255a mullet 169 



)70 Index 

SECTIOX PAGE 

236a Fish, perch 176 

237 pickerel 176 

380-16 definition of 176 

237 pike. . . 176 

380-16 definition of 176 

236 pikeperch 175 

380-17 definition of 175 

236 saugers 175 

241 smelt 177 

240 striped bass 177 

238 sturgeon 177 

253-255a suckers 170 

253-255a sun fish 169 

232 trout 173 

380-13 definition of 173 

235 whitefish 174 

54 Fishing in forest preserve, drought 33 

251, 291 Fishways 168, 315 

62 Forest preserve 21, 22, 51 

rules as to use of 54 

57 Forested lands 37, 43 

51 Forest rangers 29 

257 Frogs 171 

200 Fur-bearing animals 145 

definition of 109 

150 Game farms 78 

380-7-10 Game, definition of 139 

taking of, 176, 177-1 127, 139 

54 Governor, proclamation of 33 

380-12 Grouse, definition of 158 

177-1 Guns 139, 141 

silencers 142 

Habitual criminals 241 

Hearings 14 

Highway 

fishing from 277 

222 hunting on 131 

380-21 Hooking, definition of 164 

380-27 Hunting, definition of 108 

drought in forest preserve 33 



Index 371 

Ice I'-^fiE 

252 fishing through 168 

shooting waterfowl from 156 

380-24 Inhabited, definition of 164 

Injunction 335 

158 Injuring property, birds, etc 103 

John Doe proceedings 225 

241a Lake George 178 

202 Land turtles 154 

50 Lands and forests, general powers 24 

212, 215, 

217 Long Island 157, 159, 161 

Licenses 

188 angling, nonresident, boundarj' waters 124 

200, 372 breeding 145, 200 

159 collectors 104 

193 dog 149 

256 eel pots and weirs 170 

200 fur-bearing animals 145 

196 hares and rabbits 151 

185 hunting and trapping 108 

178 importation 195 

158 killing protected animals 103 

230 minnows 172 

270 netting 180 

151 propagation 105 

321 Lobsters 190 

300 Marine district 188 

Minors 

guns 113 

hunting 107, 109 

liabilities of 221, 222, 240 

230 Minnows 172 

185 trapping 119 

32, 63, 182 Misdemeanor 239, 52, 214 

Navigable waters 279 

Negligence 

landowner 345 

use of guns 351 

220 Nests 137 

380-25 Nets, definition of 180 

275 landing nets - 179 

270 other nets 180 

270-283 netting 179-187 



372 



Index 



SECTION 

51 

246 

380-4 



175 

219 

315 

172 

63, 182 

380-3 

380-19 

380-22 



247, 248 
176, 181 
362 
364 
365 
182 
361 

181 
360 
182 
361 
360 
2&-36 



176, 177 
159, 196, 
200, 372 

175 



TAGB 

Observers 29 

Obstructing streams 166 

Open season, definition of 129 

Ownership 

federal 56 

private 247 

state 68, 74 

Outlawed birds 135 

shooting from traps 138 

Oysters 189 

Peace officers 212 

Penalties 52, 214 

Perch, definition of 23, 133 

Pheasants, definition of 159 

Plumage, definition of 136 

tariff act 58 

Poisoning 133 

Pollution of waters 166, 167 

Possession 127, 132 

Posted lands 336 

defacement of signs 333 

disturbance of fish and game 338 

liability for trespass 214, 340 

notices 336 

posting generally 342 

Presumptive evidence 132 

Private parks 333 

liability for trespass 340 

posting of notices 336 

publication of notice 333 

Procedure 

civU 214 

criminal 221 

Prohibition, general 127, 139 

Propagation 105, 151, 145, 200 

Property rights in fish and game 

between state and individuals 68, 74 

between individual hunters, etc 263 

between owner of land and others 276 



Index 373 

SECTION PAGK 

165 Protective force 206 

167 bonds 207 

168 compensation 207 

169 powers 207 

166 rating 206 

170 records 211 

166 removal and suspension 206 

170 reports 211 

168 salaries and expenses 207 

171 special protectors 211 

173 suits against protectors 212 

160 Publication of laws 106 

Purchase of exclusive rights 

by individuals 309 

50,' 366 by state 25, 45,338 

Quadrupeds 

194 antelope 150 

197 beaver 152 

194 caribou 150 

190 deer 146 

194 elk 150 

196 hares and rabbits 151 

198 mink 153 

194 moose 150 

201 muskrat 153 

not protected by law 145 

198 raccoon 153 

198 sable 153 

199 skunk 153 

195 squirrels 150 

55 Railroads 35 

57 Reforested lands 37, 40 

366, 366a Refuges r 338 

Rule of the chase 263 

176 Sale 127 

64 Saving clause 53 

318 Scallops 189 

169 Searches 207 

34 Search warrants 245 

154 Seizures 100 

254 Set lines 169 



374 Index 

SECTION PAGE 

316 Shellfish 189 

380-18 definition of 188 

Shooting accidents 351 

221 Snares 137 

243 Spawning fish, disturbing 165 

255 Spearing 170 

320 Starfish 189 

360 Stocking, effect of 333 

with consent of owner 335 

without consent of owner 322 

242 Stocking private waters 165 

375 Storage in close season 204 

Sullivan Law 113 

Sunday, hunting and fishing on 129 

Sunrise and sunset 140 

Supervisor's laws 84 

380-26 Taking, definition of 128 

176, 177-2 fish 127, 162 

176, 177-1 game 127, 139 

Tamed animals 252 

Tariff act 58 

57 Taxation, exemption from 37, 40, 43 

Tidal waters 277 

253 Tip-ups 168 

202 Tortoises 154 

178, 179 Transportation 193, 196 

Trap shooting live birds 138 

176, 177-1, 

185 Traps and trapping 108, 127, 144 

50 Trees for f orestation 25 

365 Trespassers 338 

61 lands and forests 51 

182 liabilities of 340 

liabilities to 345 

191 Venison 148 

Vicious animals, liability for 345 

Waters 17 

navigable 279 

non-navigable 278 

tidal 277 

380-11 Wild deer, definition of 148 

25, 35 Witnesses 15, 236 



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LIBRARY OF CONGRESS 



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